Theology and the Soul of the Liberal State (Graven Images)

GRAVEN IMAGES SERIES EDITOR: LEONARD V. KAPLAN

Rising calls in both the United States and abroad for theologizing national agendas have renewed examinations about whether liberal states can accommodate such programs

KAPLAN and COHEN

RELIGION • LAW

without either endangering citizens’ rights or trivializing religious concerns. Conventional wisdom suggests that theology is necessarily unfriendly to the liberal state, but neither

THEOLOGY AND THE SOUL OF THE LIBERAL STATE

philosophical analysis nor empirical argument has convincingly established that conclusion. Examining the problem from a variety of perspectives including law, philosophy, hisState suggest the possibilities for and limits on what theological reflection might contribute to liberal polities across the globe. Theology and the Soul of the Liberal State suggests that the liberal state cannot keep theology out of public discourse and may even benefit from its intervention, but that their intersection, if potentially beneficial, is always fraught.

CONTRIBUTORS Ann Althouse, Charles L. Cohen, John D. Dunne, Arnold M. Eisen, Lenn E. Goodman, Ayesha Jalal, Leonard V. Kaplan, Elizabeth Mensch, John Milbank, David Novak, Carl J. Rasmussen, Aviezer Ravitzky, Lobsang Sangay, Regina M. Schwartz, David A. Skeel Jr., Nicholas Wolterstorff

LEONARD V. KAPLAN is Mortimer M. Jackson Professor of Law at the University of Wisconsin Law School.

CHARLES L. COHEN is professor of history and religious studies and director of the Lubar Institute for the Study of the Abrahamic Religions at University of Wisconsin–Madison.

For orders and information please contact the publisher LEXINGTON BOOKS A division of Rowman & Littlefield Publishers, Inc. 4501 Forbes Boulevard, Suite 200 Lanham, Maryland 20706 1-800-462-6420 • www.lexingtonbooks.com

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90000 9 780739 126189

THEOLOGY AND THE SOUL OF THE LIBERAL STATE

tory, political theory, and religious studies, the chapters in Theology and the Soul of the Liberal

LEONARD V. KAPLAN CHARLES L. COHEN

EDITED BY AND

11/23/09 4:56:24 PM

Theology and the Soul of the Liberal State

GRAVEN IMAGES Series Editor Leonard V. Kaplan University of Wisconsin-Madison The Graven Images Series is intent upon publishing intellectual contemplation from the foremost scholars of law, theology and the humanities. In part, Graven Images returns to the possibility of engaging the real and its analysis without losing the gains of the Enlightenment. Series authors and editors choose to revisit classical thought and analysis with an aim of understanding contemporary issues, creating trust and meaning in a confused and ever-changing modern world. Titles in Series: Cognitive Justice in a Global World: Prudent Knowledges for a Decent Life, edited by Boaventura de Sousa Santos The Law Before the Law, by Steven Wilf Theology and the Soul of the Liberal State, edited by Leonard V. Kaplan and Charles L. Cohen

Theology and the Soul of the Liberal State Edited by Leonard V. Kaplan and Charles L. Cohen

LEXINGTON BOOKS A division of ROWMAN & LITTLEFIELD PUBLISHERS, INC.

Lanham • Boulder • New York • Toronto • Plymouth, UK

Published by Lexington Books A division of Rowman & Littlefield Publishers, Inc. A wholly owned subsidiary of The Rowman & Littlefield Publishing Group, Inc. 4501 Forbes Boulevard, Suite 200, Lanham, Maryland 20706 http://www.lexingtonbooks.com Estover Road, Plymouth PL6 7PY, United Kingdom Copyright © 2010 by Lexington Books All rights reserved. No part of this book may be reproduced in any form or by any electronic or mechanical means, including information storage and retrieval systems, without written permission from the publisher, except by a reviewer who may quote passages in a review. British Library Cataloguing in Publication Information Available Library of Congress Cataloging-in-Publication Data Theology and the soul of the liberal state / edited by Leonard V. Kaplan and Charles L. Cohen. p. cm. — (Graven images) Includes bibliographical references and index. ISBN 978-0-7391-2617-2 (cloth : alk. paper) ISBN 978-0-7391-2618-9 (pbk. : alk. paper) ISBN 978-0-7391-4431-2 (electronic) 1. Religion and politics. 2. Liberalism—Religious aspects. 3. Religion and state. I. Kaplan, Leonard V. II. Cohen, Charles Lloyd. BL65.P7T47 2010 201’.72—dc22 2009038462

⬁ ™ The paper used in this publication meets the minimum requirements of American National Standard for Information Sciences—Permanence of Paper for Printed Library Materials, ANSI/NISO Z39.48-1992. Printed in the United States of America

This book was published with the support of the Lubar Institute for the Study of the Abrahamic Religions at the University of Wisconsin-Madison.

To my wife, Martha A. J. Kaplan, my son, Jonathan R. Kaplan, and my daughter, Sarah R. Kaplan with love and appreciation —Leonard V. Kaplan To my God-given family: my father, Robert E. Cohen, the memory of my mother, Gladys S. Cohen, and my brother, Richard G. Cohen —Charles L. Cohen

Contents

Acknowledgments

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Introduction Charles L. Cohen and Leonard V. Kaplan

1

Part I: The Nature of Religious Argument 1

2

3

4

Naked in the Public Square: Depth of Commitment in the Liberal State Today Lenn E. Goodman

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Social Contract in Modern Jewish Thought: A Theological Critique David Novak

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Justices Story and Holmes in the Realm of the “Brooding Omnipresence” Ann Althouse

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Theology, Society, and the Vocation of the University Arnold M. Eisen

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Part II: Theologies of the Marketplace 5

St. Augustine, Markets, and the Liberal Polity Elizabeth Mensch

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When Markets and Gambling Converge David A. Skeel, Jr.

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Contents

Part III: European Perspectives 7

A Theological Case for the Liberal Democratic State Nicholas Wolterstorff

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Preserving the Natural: Karl Barth, The Barmen Declaration: Article 5, and Dietrich Bonhoeffer’s Ethics Carl J. Rasmussen

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Materialism and Transcendence John Milbank

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201 221

Part IV: Asian Perspectives 10

A Jewish and Democratic State: A Normative Perspective Aviezer Ravitzky

11 In the Shadows of Modernity? Theology and Sovereignty in South Asian Islam Ayesha Jalal 12

A Constitutional Analysis of the Secularization of the Tibetan Diaspora: The Role of the Dalai Lama Lobsang Sangay

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Part V: Religion and Terror 13 Grave Images: Terror and Justice Regina M. Schwartz

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14 Compassion, Knowledge, and Power: A Tibetan Approach to Politics and Religion John D. Dunne

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Conclusion

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Index

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About the Contributors

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Acknowledgments

This book grew out of an interdisciplinary conference, “The Place of Theology in the Liberal State and the Globalized World,” held at the University of Wisconsin-Madison Law School on October 11–12, 2002. We gratefully acknowledge the logistical, financial, and/or personal support of the people connected with the following units at the University: the Project for Law and the Humanities, the Institute for Legal Studies, the Anonymous Fund, the Law School, the Religious Studies Program, the Mosse/Weinstein Center for Jewish Studies, and the University Book Store. The administration and staff of Edgewood College made the sometimes tricky details of institutional collaboration easy. We want to accord a few people special recognition. Pam Hollenhorst, Associate Director of the Institute for Legal Studies, handled the myriad details with her special combination of expertise and grace. Sheldon and Marianne Lubar’s vision in creating the Lubar Institute for the Study of the Abrahamic Religions has reminded us why the larger project toward which this book points matters so much. Susan Sawatske and Theresa Evans made the index their own. Finally, Julie Kirsch of Lexington Books has provided extraordinary editorial support and exhibited more patience than the editors deserve. Leonard V. Kaplan and Charles L. Cohen Madison, WI December, 2009

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Introduction Charles L. Cohen and Leonard V. Kaplan

Throughout the twentieth century, virtually all social scientists and humanists—at least in the academy—assumed both that the Enlightenment had banished theology from discourses about the state, and that this ostracism was salutary. That these conditions no longer hold is evident from the recent publication of two major books that disagree passionately on religion’s role in public discourse but testify to the question’s immediacy. In The Stillborn God,1 Mark Lilla traces the history of political theology from early Christianity to the present, noting that nineteenth-century liberal Protestant thought in Germany left only tepid theological resources that were easily undermined by the right-wing populist romanticism undergirding Hitler’s rise to power. Nevertheless, Lilla argues, any breakdown in the state’s constraint of religion in the modern United States may have equally deleterious effects; for him religion threatens to undo rather than defend the liberal polity. Having traversed the same ground, however, Charles Taylor comes to a contrary conclusion: readmitting theology and, more particularly, the concept of a monotheistic God, into Western politics is absolutely necessary. The current liberal habit of quarantining God-talk to the private square, where it cannot infect public discourse, is, he believes, deleterious to the health of both the state and its denizens. 2 Lilla and Taylor disagree emphatically on whether religious postulates belong in political discourse, but they readily concur about the issue’s stakes. This volume represents an effort to probe the implications of reintroducing theology into liberal political theorizing. It inclines toward Taylor’s position rather than Lilla’s—none of the contributors rejects the potential value that theological propositions might bring—but does so tentatively: theology’s promise must be thought through and tested, not presumed.3 It 1

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opens issues that the authors all feel cannot be ignored but whose solutions defy easy answers. Each chapter represents a considered attempt to work through potentially new relationships between theology and liberalism, seeking to preserve the emphasis on the human rights (such as freedom of speech and freedom of religion), which constitute the Enlightenment’s heritage to democratic states while trying to rectify the instrumentalism and vapid civil religion that certain varieties of liberalism have wrought. Originating as papers delivered at an interdisciplinary conference on “The Place of Theology in the Liberal State and the Globalized World” at the University of Wisconsin-Madison, the chapters evince a variety of approaches; scholars specializing in law, literature, philosophy, political science, history, and religious studies have focused their expertise on a common concern and, not surprisingly, struck off in a host of directions. The two of us provide an overarching framework in this introduction, where we summarize and engage the chapters, and in the conclusion, which airs some general considerations that the chapter imply collectively but do not identify. As a whole, the book tries to identify the coordinates within which conversations about theology and the liberal state can take place.

I. THE NATURE OF RELIGIOUS ARGUMENT The book opens, appropriately enough, with a thoughtful consideration of John Rawls, arguably the foremost liberal political-cum-jurisprudential philosopher of the latter twentieth century and someone who thought deeply about theology’s place within liberal discourse. Concerned to protect the state and its citizens from doctrines or programs that masquerade as universal but disguise partisan particularities, he contends that no considerations of religion or metaphysics—no ultimate commitments—have a proper place in grounding public policy or even in the debates touching its basics. The state and its rulers must not take positions on what constitute the goals of human life but rather should maintain “neutrality of aim.” Rawls’s concern to defend against totalizing ideologies is absolutely valid, but his solution to ban religion from meaningful participation in public discourse opens problems of its own. How, for instance, can a liberal society dedicated to free speech suppress arguments that voice some of its members’ deepest convictions? Invoking principles is not coercion, and there is no better place for invoking them than in public deliberation. Moreover, Rawls may inadvertently subvert the very rights he wants to protect. Applied consistently, his exclusion of all appeals to religious or comprehensive philosophical ideas would also exclude appeals to basic rights unless those appeals were already deemed reasonable in themselves—presuming, of course, some consensus on “reasonable.”

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In “Naked in the Public Square: Depth of Commitment in the Liberal State Today,” Lenn E. Goodman raises these concerns, scourging Rawls’s procedural notion of liberalism for both inveighing against ultimate claims while smuggling in its own and failing to recognize how religious values can mobilize campaigns for human rights. Goodman demonstrates that the values Rawls establishes as paradigmatically “liberal” are themselves a priori and therefore ultimately metaphysical, not political or discursive. These values—a high estimate of human dignity and the state’s duty to enhance individual well-being—presume, Goodman makes clear, a theology that is not only unexpressed but that, by advocating the state’s neutrality in constructing the values under which it operates, may hamstring the very rights it yearns to advance. Rawls is rightly concerned about theology’s potentially invidious effects on politics, but Goodman counters with examples where it has sided with the angels: many of the attacks on slavery were theologically based. Goodman argues that the kind of constraint on the state for which Rawls contends would constrain those who, for example, argue against pornography as denigrating women. If the state is concerned to protect freedom of speech, why should it declare views bearing on the subject that derive from theological postulates out of bounds? Goodman does not come to the table to push a program about pornography or some other “hot-button” issue, as he makes clear in discussing capital punishment, about whose ethical legitimacy he declares his ambivalence. His argument is, rather, that he welcomes argument on this and other matters from diverse perspectives, and that in such instances theology has as much to offer if not more than many other discursive practices. Like Rawls, Goodman takes reasonableness and rhetorical openness seriously while claiming to be more serious than Rawls in revealing covert fundamentalisms. Goodman well knows that religion can be commandeered and abused, but he thinks that a liberal populace that is also theologically informed can see through banal and wrong-minded dogmatics in the course of open debate. A theologically literate population, he seems to suggest, will fall prey to the kinds of absolutizing propositions that Rawls fears far less frequently that an illiterate one. One of the flash points at which particularistic theological claims clash with the liberal state’s imperatives to treat all citizens equally occurs when a group sees its collective identity as having been divinely ordained and thus prior to the state’s (necessarily) secular classification. By thinking about how Jews can exist simultaneously as a people defined by their relationship to God and as members of a secular, pluralistic polity, David Novak updates the “Jewish Question” in ways that transcend its brutal past in Europe and pose salient queries about how any people with a strongly realized corporate religious identity can belong in a liberal state. Novak rehearses the points at issue by meditating on the answers given by two

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magisterial Jewish philosophers, Baruch Spinoza and Moses Mendelssohn, who proposed radically different solutions. Relegating the Bible to parable and judging theology to be intellectually infantile, Spinoza, according to Novak, rendered the covenant as a social rather than a divine contract and reversed its terms: the Jews chose God, not God the Jews. Consequently, there is no Jewish identity based on revelation and thus no necessary conflict with the demands of the state, whose new civil religion is to be a new Judaism, albeit one that no longer needs the Jewish people qua people at all. Mendelssohn remained a committed Jew, however, so the problem, as he saw it, was to make Judaism compatible with the enlightened state. His theory mixed social contract with natural law. Human beings enter society to escape chaos imbued with a natural morality that leads them to choose the religious tradition they find most persuasive. Judaism can, therefore, still make cogent claims on individual Jews as a religion in the modern sense, a non-authoritative voluntary commitment made by humans to God. Meanwhile, the state must tolerate Judaism, indeed all religions. For Novak, committed to traditional notions of Jewish identity based in scripture, Spinoza’s position is dead on arrival, but he also argues that Mendelssohn’s enlightenment settlement bequeathed Judaism a problematic legacy that has frustrated the development of a more robust Jewish social contract that in respect to both God’s and humankind’s obligations. He asserts that, from one prominent strand of Jewish tradition, an individual moves not from nature into civil society via the social contract (à la Locke) but via God’s election of Israel into the covenant community. Only once Jews have been socialized within that body can they participate in a social contract with others. From this perspective, Mendelssohn’s theory is inadequate to Jewish tradition by subordinating it to a non-Jewish universe, and insufficient for traditional Jewish practice. It does not, Novak concludes, give Jews enough wherewithal to enter a social contract and still return home to the Jewish community (understood in the deepest ontological sense) fully intact. Novak advances a Jewish idea of the social contract in which the Jewish community must learn how to support the state and to demand respect, not just tolerance, from the state. He does not, however, advocate an established state religion; only a pluralistic approach prevents the state from either dictating one particular traditional religion or its own invented religion. In The Jewish Social Contract,4 of which this chapter is a part, he continues this argument, asserting that Jews should enter into the liberal democratic dialogue without giving up the Jewish commitment to God’s law and revelation. Novak’s “pluralism” grounds every people in the democratic dialogue to their respective ethnicity, both for the basic richness of their respective inheritances and as a way of preventing them from descending into a thin default civil religion. One might ask, though, if the very claim of the traditional Jewish (or Muslim, or any similarly constructed) community

Introduction

5

as a lawful society to impose duties on its adherents—who are also citizens of the state—conflict in principle with their duties of citizenship? Considered institutionally, discussions of religion in the public square usually focus on the debates, in and out of capitol doors, that surround the legislative process, but, as Ann Althouse reminds us in her examination of nineteenth-century Supreme Court Justices Joseph Story and Oliver Wendell Holmes, theological speculation inflects judicial thinking as well. Story held that a judge’s task is to find law, not make it, a position that Althouse conjectures may have connected ideas about reason and law with notions of truth and God. A Unitarian who believed that religion has an indispensable role to play in reinforcing civil society and that Christianity is part of the common law, Story may well have thought that the judge’s work in seeking answers in the common law comprised a search for God’s truth. For his part, Holmes teased out and attacked the theological underpinnings of Story’s opinion, contesting the proposition that parties are entitled to an independent judgment on matters of general law. Judges are conduits of earthly power, Holmes propounded, and to think that the reasoning process puts them on a plane different from that of legislators is deluded. Law issues from might, not truth. Writing in the landmark decision Lochner v. New York in 1905, Holmes revealed his lack of faith in the ability of reason to forge consensus, declaring that judges could safely divest themselves of the duty to rule in accordance with some supposed divine law and advancing the majoritarian position that law is good if it reflects the will of a community’s dominant forces. At first glance, Althouse is tracing the emergence of constitutional interpretation founded on contingent assessments of current power arrangements rather than on metaphysics, but she goes on to claim that Holmes did reason from a metaphysical foundation, occasioned by an experience during the Civil War in which, convinced that he was about to die, Holmes refused to recant his views on religion but accepted his fate—even if he were destined to hell—as compatible with the general good. Unlike Story’s philosophy, which presumed a universal reason open to judicial discovery, Holmes’s stance was predicated on his determination that profound surrender to an inexorable outside force was theologically and therefore judicially more likely than reasoned judgment to promote the public good. Far from removing theology from his judicial discourse, Althouse maintains, Holmes based it on a leap of faith that substituted the majority’s will for God’s: vox populi, vox dei. Story’s and Holmes’s different stances evoke a question central to this book. If, arguendo, Althouse is correct that each justice calls on theology for jurisprudential faith, one might ask if (and, if so, how) a jurisprudence based on theological principles differs from one based on purely secular justifications for interpreting law in the service of some perceived social good.

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The academy constitutes an important venue molding the discourse eventually instantiated in legislation and legal pronouncements; if we admit theology into assemblies and courts, shouldn’t we also allow it in lecture halls and labs? Nineteenth-century schools did so routinely, but most educational institutions, especially public ones, have long since banished it so as to transgress neither the perceived boundaries between church and state nor the rationalist, scientific epistemology that governs scholarly research. Arnold M. Eisen advocates rethinking the modern university’s aversion to theological reflection, though he is careful to distinguish between its role in teaching, which he supports, and in scholarship, where he remains quite skeptical. He necessarily challenges Max Weber, the ur-architect of the modern research method, who claimed both that science provides the only credible framework for seeking reliable knowledge of the world, and that, since science cannot prove value, its endeavor must be value-neutral. This view has profound implications for instruction; all a teacher can do is provide data from which individuals then extrapolate value-laden decisions. Eisen demurs. By excluding theology as an epistemological tool qualitatively different from and hence inferior to science, he contends, Weber narrows academic inquiry to the rationality of means. Moreover, no accumulation and presentation of facts can hope to be value-free; indeed, professors import values into putatively neutral facts all the time. Having cleared the ground, Eisen illustrates the pros and cons of bringing theology to class by examining two twentieth-century advocates: Abraham Heschel, who held (pace Weber) that the vocations of science and prophecy do not conflict, and Mordecai Kaplan, who argued that schools have a mission to embrace values as well as facts. Eisen renders Heschel as a proof figure for legitimizing theology as an academic subject while savaging Kaplan for having failed himself to distinguish between facts and values. What Eisen does not suggest is how under liberal premises one can enroll Heschel in class as an exemplar of productively engaged thought while excluding Kaplan as a dogmatist whose presence would restrict debate. Not all theologians would applaud the university’s embrace of theology. Orthodox Rabbi Joseph Soloveitchik has observed that religious belief cannot be “translated” successfully into secular culture’s terms and so must remain marginal to that culture, an opinion Eisen considers oddly consonant with critical theorist Jürgen Habermas’s dictum that communicative reason, the vehicle for bringing diverse communities into conversation, must shed religious and metaphysical language. Eisen himself prefers Karl Barth’s position that theology retains significance for the university even if it remains at the margins because it engages in a systematic search for truth about the world in concert with all other disciplines, differing from them principally in terms of its method, its commitment to articulating values, and its consequent ability to radically critique the truths that the other dis-

Introduction

7

ciplines collect. To be sure, Eisen, who taught Jewish Studies at a prestigious private university and is now Chancellor of Jewish Theological Seminary, recognizes the power of the establishment clause; he opposes theological advocacy in curricula outside its proper realm of divinity schools and seminars. Still, he welcomes theology for its potential to create dissonance: a university lacking it would be a “quieter but less interesting” place, not to mention an intellectually impoverished domain. One may agree with Eisen’s conclusions yet wonder how implementing the explicit teaching of values within the university might play out in a political culture so mightily fractured by competing interests and prone to find offense in almost any proposition.

II. MARKETS Moral concerns about how capitalist markets function are hardly new. Adam Smith, the “father of modern liberal economics” who declared that free trade would multiply the wealth of nations and thus enhance human welfare, also fretted about the consequent inequalities. Karl Marx called famously for a politics that would free individuals from industrial capitalism’s dehumanizing labor and grant them the capacity to enjoy fully the material fruits of this world—the only world. Opponents of globalization fulminate against the World Bank and the International Monetary Fund as ubiquitous evil forces pursuing profits at the expense of human suffering in underdeveloped areas. Evaluations of markets often insinuate or mimic religious sensibilities un-self-consciously, failing to understand—and thus better utilize—their rhetoric’s theological substrate. If religion is seldom a welcome guest in liberalism’s public political sphere, it is a virtual ghost in the economic one. Nevertheless, the relationship between market theory and Christian theology has not always been as distant as it now seems. In “St. Augustine, Markets, and the Liberal Polity,” Elizabeth Mensch argues that, commencing well before any notions of capitalism existed, Western Christianity articulated a cogent theological analysis of the market based on an Augustinian excursus into the problem of human imperfectability. Augustine balanced a keen sense of humanity’s fallibility with an equal appreciation for the goodness of life even in the fallen world. He decried lust for wealth as a sin that traps people in endless cycles of economic activity that can only exacerbate their transgression, yet he also labeled material goods a blessing and praised the productive capacity that created them. Behind this apparent contradiction lay both a profound distrust of perfectionist doctrines, which he regarded as elitist (and prideful) refusals to acknowledge the shared sin that is humanity’s mortal estate, and an eschatology that relegated the Second Coming to the distant future, which

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underwrote an ambiguous valuation of commerce: exchanging goods is an imperfect (of course) reflection of God’s perfect gift of grace yet a wholly acceptable activity given humanity’s postlapsarian nature. Augustine left no code of market ethics, but his treatment implied that markets themselves are not inherently evil; like everything else, they exhibit the ambiguities that characterize life in the flesh. To over-condense Mensch’s bravura run through some fifteen hundred years of intellectual history: Christian market theories emerged partly as a justification for Augustine’s anti-perfectionism. This framework guided speculation through Scholasticism, the Reformation, and the Court/Country debates in early modern Britain that had such a formative impact on Anglo-American political theory. It configured such disparate arrangements as the American Federal Constitution of 1787 and the foundation of the post–World War II economic order at Bretton Woods, which relied on the corollary that markets can balance otherwise destructive appetites. Casting recent debates over globalization against Augustine’s view of markets reveals their shallowness, Mensch concludes; defenders underplay the market’s ruthlessness while critics overstate the possibility of perfecting market—and human—behavior. Mensch’s chapter reminds us that theology has critiqued market mechanisms far longer than we generally suspect. One might also read it as a cautionary moral tale about the limitations of all economic ideologies, let alone market forecasts. An Augustinian reckoning suggests that the problem of how to transform markets from arenas of winners and losers into a mechanism that may benefit all is not resolvable. If accurate, such an analysis lessens the perceived distance between responses to the globalization of markets offered on the political right, left, and center, since all of their programs are necessarily contingent. Too, it warns against utopian high-flying; neither a Friedmanite acquiescence to let markets be markets nor a Green rejection of technological innovation will work. Yet Augustine’s failure to sketch a market ethic leaves us in the lurch. Recognizing that human imperfection limits the extent to which we can make markets function equitably—the poor will likely always be with us—can degenerate into an excuse to do nothing, a course that fails to address sinful behavior, a distinctly unAugustinian stance. The open question is how theology might draw a line between normative human fallibility and sheer corruption. If Mensch presents Christian ambiguities about what constitutes sinful and acceptable economic behavior in macrocosm, David A. Skeel, Jr., pinpoints a microcosm among modern evangelicals (by which he means theologically conservative Protestants whose early-twentieth-century predecessors resisted Modernism). Evangelicals applaud personal involvement in markets but oppose gambling, failing to note that some forms of buying and selling, such as investing in derivatives, look in his estimation little different from playing the ponies. This divided mind developed for historical

Introduction

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and moral reasons. Evangelicals emerged historically as eighteenth-century opponents of church establishments, and their outrage about the state’s regulating religious markets carried over into suspicion of its claims to control financial ones. This attitude paralleled their emphasis on personal responsibility for moral behavior; resisting temptation falls first upon the individual, who must resist the devil whether he appears as a cooked contract or a pair of dice. But how and why evangelicals have retained their diffidence for criticizing market phenomena while refusing to rethink their objections to gambling is not so clear. Sheer incomprehension of legal technicalities and political expedience may play a role, but Skeel prefers two other explanations: evangelicals maintain that market transactions may make both sides better off while gambling is a zero-sum game in which at least one bettor must lose, and they distinguish the private sphere, where their traditional insistence on personal moral responsibility holds sway, from the public, where no such familiar calculus applies. Skeel uses gambling as an exemplary case to warn everyone—especially evangelicals—against regulating moral behavior even when a group has cogent theological and policy reasons for doing so. The problem with imposing one’s morality on others is that victory may end up resembling defeat and generate perverse consequences: witness Prohibition, where discretionary enforcement and the statute’s unpopularity resulted in massive flouting of the law. He draws two lessons from that experience: laws by which a fragile majority foists a definitive moral position on the opposition can result in a ferocious backlash, as happened after Roe v. Wade, and laws that expand too far beyond the core of the behavior they are designed to prohibit will likely generate unforeseen (not to mention untoward) consequences. While personally convinced that individual Christians should shun gambling, Skeel warns evangelicals that they have expected too much from the law in battles against immorality and proposes a different approach, which he calls “channeling”: permit legalized gambling but limit efforts to stimulate demand. Skeel’s solution is reasonable from a policy standpoint, but it also reflects something of the older evangelical attitude against regulating public morality (an argument nineteenth-century Southern planters employed to defend their churches’ stand on slavery) and harbors a theological finesse. What kind of test can tell us when pragmatic considerations should trump theological principle? At what point, one may ask, does countenancing sin pass into aiding and abetting it? Skeel’s essay has important implications for thinking about economic regulation too. Some market practices look very much like gambling, while the past decade has seen more than its share of corporate behavior that looks hugely immoral as well as fiscally irresponsible. And yet, he warns, zeal in attempting to mediate the market and excise corruption will likely

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hamper proper market action, though he would not eschew all oversight. Skeel’s prescription for regulatory policy fits nicely into the scheme that Mensch has identified as normatively Christian: awareness of human fallibility should lead us into neither execrating the mechanism of the market that can bring us material goods nor trying to extirpate all sin from its operations. If nothing else, the pair demonstrate that theological reflection on public policy need not be extremist.

III. EUROPEAN PERSPECTIVES For whatever reasons—perhaps because European thinkers have had more centuries to wrestle with the relationships between church and state than have Americans, or because in the United States such questions have become the province primarily of jurists rather than philosophers—some of the more probing analyses of how theology can inform liberalism come from scholars who plumb continental philosophical and theological traditions. Citing Revolutionary America—often considered ground zero for the formation of secular liberalism—as a place where the liberal democratic state in fact emerged in the very midst of institutional religion and theological argument, Nicholas Wolterstorff advances both an apologetic for making “A Theological Case for the Liberal Democratic State,” and an exemplary theorist in the person of Abraham Kuyper, a nineteenth-century Dutch Calvinist. Kuyper fashioned a communitarian model of liberalism that starts with civil society being composed of multiple collectivities rather than, as in the Lockean tradition, with the individual who enters the social compact. As society develops, Kuyper contends, differentiated institutions—families, churches, and the like—emerge, each of which acquires authority to set the rules within (and only within) its own appropriate sphere. Government constitutes one such agency, but its sovereignty, like that of all other bodies, derives from God and is thus limited by its responsibility to Him. Kuyper charges the state with fashioning social justice and maintaining comity between other authorities; set out as positive duties, the state should police the boundary lines between spheres, defend against abuses of power, and impel everyone to contribute to its operations personally and financially. The best protection against the state itself overstepping its sovereignty, he asserts, is to keep civil society vital. Kuyper’s notion that the liberal state is composed of interacting and cooperative spheres of sovereignty, each of which holds a divine mandate to further the good of individuals and the community within its delimited sphere, has certain attractions. It does balance the mutual obligations between citizens and state. The theory does, however, have limits. Wolterstorff observes that Kuyper overlooks the role of compacts in creating spheres of

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authority and chides him for not saying more about how individual rights might limit their power. If Kuyper’s argument were continued beyond its present confines, he might argue that an appropriate exercise of power in each respective sphere acts to socialize an individual toward duty, not right. Nor, one might add, does Kuyper even imagine how a liberal democracy might function outside its national borders—as a colonial power (as was the Netherlands in Kuyper’s time), a member of regional political formations (such as it is now within the European Union), or a node of global commerce (as it did then and does now).5 Finally, the theory is short on specifics about each sphere’s concrete administrative agencies. Yet whatever Kuyper’s shortcomings, Wolterstorff’s cardinal point is the affirmation that a theological case for the liberal state is not only plausible but necessary. An admitted partisan of liberal democracy, Wolterstorff worries that an absence of theological justifications exposes it to potentially dangerous attacks from illiberal theologies. Kuyper’s rather benignly overlapping orders do not generate much tension between the institutional church and the state. The Nazi seizure of power made that issue urgent, as Carl J. Rasmussen relates in “Preserving the Natural: Karl Barth, the Barmen Declaration: Article 5, and Bonhoeffer’s Ethics.” Hitler’s unification of the German Protestant churches won approbation from a bevy of establishment political theologians and opprobrium from the Confessing Church movement, which opposed National Socialist ideology inside (if not outside) the church. The two sides contested Luther’s doctrine of the two kingdoms, which preserved the church’s authority over the Gospel but handed its government to the state. Whether standing selfconfidently as Protestant liberals or claiming the Reformation’s mantle, apologists for the Nazi regime asserted that God manifested Himself through the German Volk and the Third Reich, both of which constituted divinely instantiated orders. Those assertions ran headlong into Karl Barth, the great Reformed dogmatist, and the Confessing Church’s Barmen Declaration of 1934. Barth thundered that nature embodies no independent revelation, hence the state cannot be divine. Barmen, which Rasmussen judges changed Protestant understandings of church and state more deeply than any event since the Reformation, denied that the state could either subordinate the church or assume its vocation. The state has a divine task but not a divine status, and it must carry out that assignment under the church’s imperative to proclaim God’s word. Barmen’s opposition to the Reich’s intervention in ecclesiastical affairs courageously opened up a “breathing space” within the totalitarian state but did so, Rasmussen acknowledges, at the cost of throwing unsullied liberal ideals about human dignity out with the dirty bathwater of German liberal Protestantism’s faulty epistemology. By opposing the Third Reich with the Gospel alone, Barmen excluded the claims of natural reason and those of other religious confessions, thereby

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proclaiming a Christian theocracy that politically validates only the Confessing Church. Rasmussen credits Dietrich Bonhoeffer, a Lutheran member of the Confessing Church martyred in 1945 for resisting Hitler, with excising Barmen’s authoritarianism while sustaining its attack on the totalitarian state. Writing with an eye to raising a platform on which Protestants could stand with the rest of humanity in the ruins of a secular, postwar world, Bonhoeffer agreed with Barmen that government does operate under a divine mandate articulated by the church, but he transcended it by positing a Protestant philosophical realism that magnifies human reason outside grace and opens the possibility for a natural theology. Carving out a realm—the individual’s natural life before justification in Christ—that Protestant (though not Catholic) ethicists had ignored, Bonhoeffer asserted that “the natural” affirms the individual over against the state, constituting those rights by scriptural warrant and placing them (against traditional German political thought) prior to one’s duties. Rasmussen is drawn to Bonhoeffer’s Ethics because he believes that theological reflection provides the only theoretical hope for grounding politics and justice. Although the chapter itself does not elucidate, its argument springs from the author’s dissatisfaction with classical liberalism’s rooting the state’s sovereignty in the individual and its inability to prescribe a moral order in other than self-referential terms. Rasmussen sees Bonhoeffer as blazing a path down which theology can fulfill liberalism’s aspirations while circumventing its flaws. As the German liberal Protestant example suggests, a dark side of the Enlightenment justifies totalitarianism. Rasmussen’s Bonhoeffer, on the other hand, deploys natural theology to assert the individual’s fundamental rights against the state and establish an objective moral order. The essay does, though, leave a conundrum: if establishment Protestants and Bonhoeffer reached opposite conclusions appealing to natural theology, how do we determine which of them read scripture better? Wolterstorff and Rasmussen build their cases for infusing political theory with theology by using liberalism and Protestantism as their examples. In “Materialism and Transcendence,” John Milbank essays a radically different project: to supersede liberalism entirely and blend Marxism with a philosophical Catholicism to create a holistic theory of the state capable of instantiating an emancipator politics and promoting social justice. Though it has fallen much into disfavor over the past quarter century, Marxism, Milbank believes, maintains its viability as a social theory but has been hampered by reductionist materialism. Indeed, with a few exceptions—the Stoics, Spinoza, and Nietzsche—Western philosophical materialism has reduced ontology to the mechanical. Some Continental Marxists and philosophers have recognized the problem and worked toward an adequate ontology for understanding human existence, but they have not succeeded.

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The question is acute, Milbank urges, because every socialism requires an account of human nature, without which one cannot determine why there is something lacking that needs to be emancipated or what that something might be. He seeks, therefore, to develop a “materialist ontology” to undergird “socialist aspirations.” Milbank proposes that theology provides the key toward which Marx and other non-reductionist materialists groped, because only it (and modes of philosophy willing to reference the transcendent) posit an ultimate principle that is thinking and willing. And not just any theology, he contends, but necessarily Christianity, because authentic human interaction requires recognizing not what is different in each other, as pluralist multiculturalism would have it, but what is everywhere the same, and Christianity is par excellence the religion of universalism. It invented the logic of universality and constitutes that logic in a particular event—Jesus Christ. In a pyrotechnic display of philosophical virtuosity, Milbank develops his propositions by working through Alain Badiou, Slavoj Žižek, Jacques Lacan, Jacques Derrida, and other modern thinkers only to come back to St. Paul, for whom agape is a longing both for other people and a final vision of God. Agape, Milbank urges, is grounded in the material world. Here is where theology and socialism merge. Along with the other contributors to this volume, Milbank agrees that theology has much to contribute to political theory, but, against them, he affirms the utter poverty of liberalism and insists that socialism provides the only plausible ground for a humane and just politics. He claims that the invented logic of Catholic theology solves the issue of blending the immanent with the transcendent, the empirical with the ideal, in order to assert that a fully realized socialist state must also be Catholic. His flight through the Western tradition is brilliant, but his conclusions are problematic and ironically without a cogent politics. Claude Lefort, himself originally a Marxist and then Maoist, points toward Milbank’s problem, a lack of historical contextualization.6 Milbank eschews idealism in the name of a superior, non-idealized materialism that is itself idealized and refuses to identify historical forces where the unfettered human will through practice must wend its way toward the outcomes of grace. But, one might ask, doesn’t grace come from God, not the human will? Some readers might question his argument that Judaism, while displaying a “universalising drift,” cannot offer a theology of universality because it does not make recognizing its laws a condition for universally recognizing the God of all nations.7 But must law serve as the necessary vehicle? He similarly and perfunctorily dismisses Islam without taking up the Shehada: “There is no god but God, and Muhammad is His messenger.” While demeaning liberalism, he never critiques socialism, whose rightness and righteousness we are to take by faith alone. Finally, his definition of “Catholic” is selective, referencing the church’s philosophical theology without its ecclesiological claims of

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papal infallibility and extra ecclesiam nulla salus, thereby opening himself to charges of promoting a version of the Christian authoritarianism that Rasmussen finds in Barmen. Still, Milbank’s powerful effort to synthesize materialism and transcendence challenges not only those theorists looking to reconcile liberalism and theology but all liberal thinkers to explain their system’s virtues against those of socialism with a godly face.

IV. ASIAN PERSPECTIVES Because of the historical circumstances in which the liberal state arose, most analyses, including those (except Milbank’s) presented in this book thus far, understandably take Anglo-American polities and Protestantism as normative for analysis. In a globalized world, however, theorizing about liberalism and theology requires pondering models with different constitutional and religious dynamics, lines of inquiry that the following three chapters develop. In “A Jewish and Democratic State: A Normative Perspective,” Aviezer Ravitzky addresses the Israeli political structure’s central tension: how can a nation that carries the historical, ideological, and theological burdens of identifying itself as specifically Jewish also be fully democratic? By “democracy,” Ravitzky means first and foremost a polity in which issues are decided by appealing to popular consent, but he finds no easy way to delineate the category “Jewish state,” if only because nineteen hundred years of statelessness completely suppressed Jewish meditations on the subject. He ventures that the fundamental problem for defining a Jewish state is not the theological one of reconciling God’s sovereignty with humanity’s (God is sovereign, of course), but the more mundane (and perhaps more fraught) one of determining the most desirable character of human rule on earth according to both halakhic (i.e., according to Jewish religious law) and secular political criteria. He dismisses conventional proposals as subordinating either Judaism to democracy or vice versa, negating each one’s independent status. He also decries what he perceives as Israelis’ growing tendency to adjudicate their differences by flinging at each other the letter of their preferred law—halakhic or civil—rather than its spirit, substituting legal dogmatisms for negotiation and thereby reducing ethics to ordinances. From the depths of Jewish erudition he proposes a fourth course: learning from the gentiles. In a coda, he predicts that debates to substantiate a state that is simultaneously Jewish and democratic will likely entail confrontations between concepts of obligations versus those of rights, but that a synthesis is mandated in order to resolve the “perplexity” of Jews divided between their commitment to both religious identity and liberal freedom, and to preserve a viable polity. Ravitzky drills to the issue’s heart: Israel’s governing structure is rooted in Western European parliamentarianism, but Tanakh and the commentar-

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ies nowhere envision a liberal pluralist state. He propounds what might be called a “radical traditionalism,” arguing that any solution must engage the corpus of traditional Jewish thought but that those texts themselves invite creative rumination that can push notions of Jewish identity far beyond what a narrow reading of them might suggest. One can sympathize with the author’s rigor, honesty, and broad-mindedness while also noting that numerous points need elaboration. Who might the enlightened gentiles be, and what can Jewish theorists learn from them? We might expect gentiles to supply much in the realms of democratic procedure and values, but can they offer anything to identify the parameters of a specifically Jewish state? The final passage poignantly exhibits the existential conflict of an individual trying to balance religious obligations and liberal aspirations but does not specify how to resolve it at either the personal or collective level. Which mechanisms might be most suited to sorting out the division: the courts? The synagogues? Public opinion? Finally, the excursus ignores the proverbial eight-hundred-pound gorilla that lumbers into any discussion of Israel’s identity as a sovereign Jewish state: how does one account for the Arabs within the polity and the Palestinians in the occupied territories and beyond? To be fair, no one else has solved that dilemma either. The piece’s most important contribution is its guiding spirit, the affirmation by an Orthodox Jewish thinker that reconciling halakhah and liberal rights is a worthwhile enterprise. Where Jews had little reason to engage the problem of the state, Muslims did from the outset. Ayesha Jalal’s “In the Shadows of Modernity? Theology and Sovereignty in South Asian Islam” considers the problem of states adopting Islam as a central source of legitimacy by illuminating the development of contemporary Pakistan in the context of longstanding Muslim discourses about theology and sovereignty. Islamic political thought issues from different premises than does the Hellenistic tradition that eventuated in liberalism, she explains; viewing politics as theology, not moral philosophy, Muslim thinkers did not distinguish between separate moral and legal spheres nor conceptualized the individual and the state as antitheses. The primary Islamic expression of how to govern for the good is found in sharia, understood literally as God’s unchanging command and more discursively as the essentials of the faith, whose principal aim is to establish a moral social order. Contrary to popular and even some scholarly understandings, sharia is not itself a legal code; rather, it superintends the elaboration of fiqh, the science of law, a very human product. Early Islamic juristic discourses on religiously based sovereignty displayed great complexity and variety, the fruit of the ulema’s (educated legal scholars’) freedom to formulate their decisions using ijtihad, independent reason, but in the thirteenth century Sunni orthodoxy, supported by the Abbasid caliphate, froze jurisprudence into four major schools. These increasingly rigidified versions of fiqh have

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had disastrous consequences for Muslim thinking about the Islamic state, Jalal contends, and she points to Pakistan, where these conservative jurisprudential traditions suffuse the attenuated civil society that emerged from British rule. Pakistan’s constitution of 1949 tried to bridge differing views about the Islamic state but tilted toward a liberal solution that acknowledged God’s sovereignty over the world while vesting state sovereignty in the people. This compromise angered the ulema, whose diatribes against the state’s failure to implement strictly Islamic governance have helped frustrate alternative solutions to balancing theology and sovereignty. It proved easier to adapt the Raj than to turn Pakistan into a state that could attain Islamic ideals of equality, solidarity, and freedom, she laments. Pakistanis desperately need to build a civil society released from both the ulema and the colonially defined private sphere to reclaim public space. By not countenancing a state or a separate mode of human governance, Islam created a problem well recognized in political philosophy, jurisprudence, and theology. Who serves as the authoritative spokesmen or interpretive authority for explicating, institutionalizing, and executing God’s authority? What one might deem the not-so-hidden tragedy of Islamic history in Jalal’s reading is that Islam allows for multiple answers but that historical circumstances have allowed the ulema to limit the number of authorized ones. Here she provides uninitiated Western and, one conjectures, many Islamic readers as well, with the basic terms and changing grammar of Islamic legal-theological discourse, as well as parsing theorists like Muhammad Asad and Fazlur Rahman, who to tried to envision modern Islamic states based on extended conceptions of fiqh. She is equally unsparing of Western colonial powers, whose rule deranged Islamic styles of moral governance. Muslims desire a state that can dispense justice and secure the community as much as any denizen of Western liberal democracies—God demands it, after all. But in South Asia, the British severed imperial civil and criminal law from the personal law of religious communities, thereby quarantining sharia so that it could apply only to family matters like marriage, divorce, and inheritance. The legacy for Pakistan is a recent history of military and quasi-military despotism that invokes Islam with scarce regard for the religion’s principles of equality, solidarity, or freedom. Indeed, Jalal’s chapter is ultimately a passionate plea for everyone to reappropriate ijtihad regarding Islam and its relevance to Muslims as citizens of modern national states. In Israel and modern Pakistan, religious interests push against a political settlement deemed too secular. Tibet reverses the dynamic: its problem is to birth a liberal constitution from a theocracy. There, stunningly, the push for liberalization has come most strongly, as Lobsang Sangay explains in “A Constitutional Analysis of the Secularization of the Tibetan Diaspora: The Role of the Dalai Lama,” from the very center of religious and political

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power: the Dalai Lama himself. Sangay explicates the paradox inherent in the phenomenon of a leader who is elevated via dynastic succession calculated by spiritual genealogy—reincarnation—rather than by bloodline, and whose authority rests on the sanctions of history and charisma, attempting both the constitutional separation of church and state and the construction of a democracy from the top down. In 1963 the Dalai Lama drafted the first Tibetan constitution on the principle of chos-sig-sung-drel—the interpenetration of religion and politics—creating a Buddhist democratic state, but, studying religion’s checkered impact on Tibetan history and governance, he came during the 1970s to favor a policy of “nonsectarianism” in which the state recognized all faiths equally. He articulated this insight as the concept of chos-lug-rimey, which allows for separating the mechanisms of church and state while welcoming spiritual guidance from any quarter—monks, officials, ordinary citizens—especially in urging policies of peace and nonviolence. Even with the Dalai Lama’s advocacy, however, supporters of chos-sig-sung-drel prevailed during debates in the Tibetan Assembly (Chitue), arguing that diluting Buddhist influence would necessarily foster corruption and inscribing their position into the Charter of 1991. That document also shifted substantial authority from the Dalai Lama to the Chitue, but because to virtually all Tibetans he embodies the Tibetan state charismatically if not necessarily constitutionally, he remains the most powerful figure in the government. He continues to press for decoupling Buddhist institutions from the state apparatus, a position favored especially by younger Tibetans. The Dalai Lama’s imprimatur and presence, Sangay concludes, are crucial to effecting Tibet’s orderly transition to a liberal democracy. Tibet’s history, circumstances, and religious culture lie farther removed from the Anglo-American constitutional and Protestant foundations of the liberal state’s classical model than do those of any other polity considered in this book, yet Sangay convincingly brings them into the conversation. Like some other contributors, he faults Rawls’s secular liberalism, disputing what he sees as its flawed assumptions: that theology alone mandates doctrinal absolutism, and that religion has had uniquely baneful impacts on human happiness. On the contrary, he counters, secular ideologies have proven equally totalizing and destructive. For him, as for the Dalai Lama, the issue involves how to incorporate religion’s most positive values, such as Buddhist canons of nonviolence, while defending against zealotry and authoritarianism. Again like other contributors, he seeks a “middle way” that distinguishes between religion’s organizational and spiritual aspects, advocating ending the former’s influence while embracing the latter’s. Moderation in its Tibetan incarnation of chos-lug-rimey means divorcing the institutions of monastery and state but without renouncing Buddhism’s legitimate place in politics. Sangay supports this position for pragmatic as well as philosophical reasons: with China subduing Tibet’s land and

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inhabitants into its own polity, replicating the traditional theocratic system in a future diasporic state will be impossible, while Tibetans’ veneration of the Dalai Lama and their fervently Buddhist sympathies makes uprooting traditionalism equally futile. Sangay concludes that chos-lug-rimey, though complicated, awaits further elaboration. One of this book’s most striking outcomes is that the analysts of Asian states, who work on non-Christian traditions and polities facing existential challenges from internal and/or external forces, consistently affirm the benefits that theological discourse can bring to liberal states.

V. RELIGION AND TERROR September 11 offered a vivid reminder of religion’s capacity to nurture homicide. Historically, the threat of religious violence underwrote liberal rationales for religious pluralism, so any apology for readmitting theology to liberal discourse must come to grips with faith’s dark heart and its scriptural proofs. In “Grave Images: Terror and Justice,” Regina M. Schwartz traces two polar representations of God in the Hebrew Bible: the generous figure who gives manna to all, and the dyspeptic disposer of limited favors for which humans must compete, sometimes fatally—witness Cain and Abel. From this second figuration emerge twin deadly narratives of exclusion and possession: God blesses only those who pay Him undivided loyalty. This vision, which Schwartz calls possessive monotheism, mutates faith into idolatry and generates a politics of religious identity. Believers worship the god who rewards the group for its devotion and, ultimately, the group itself. Simultaneously, they define everyone beyond their band as infidels whose perceived faithlessness warrants their destruction. One’s faith itself, rather than God, becomes the object of its own worship.8 Schwartz wants to read scripture as a vast critique of this ideology. To do so she unpacks the narratives of the Revelation of the Law at Sinai, cognizant that the very act of disclosing the law accompanied Moses’s order to execute those who danced around the golden calf. This violence, Schwartz contends, was directed at the offenders not because they worshiped an idol—not, in other words, because in praying to a statue they were adoring a different deity and thereby transgressed God’s commandment to worship Him alone—but because their very mode of worship, by instrumentalizing God, itself constituted idolatry. Exodus, she contends, radically proposes that the revelation of the Law is not separable from justice but is instead its foundation. In reducing God to a material thing, the Israelites traduced that Revelation and thus broke the law. What God demands, Schwartz insists, is not exclusive obedience but justice for all—the message of a generous and charitable monotheism.

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For all of Schwartz’s exegetical dexterity, neither she nor anyone else can erase the competing narratives that depict God as portioning out the grapes of wrath. Too many passages inscribe the God of possessive monotheism for any hermeneutic to wipe them out. Moreover, why should we assume that the Revelation of the Law establishes justice, or that it does not pose its own totalitarian threat? Schwartz asks those questions and offers a tentative answer. Since Thomas Hobbes, political theory has avowed that law, understood as statutory procedures, can adjudicate conflicts fairly; since cultures define the “good” so variously, only well-recognized procedures can provide a universal standard of justice. Yet procedure empty of moral values invites abuse, she warns, and can never provide justice. Expanding on the subtle differentiation between justice and law that both philosopher and Talmudist Emmanuel Levinas and Jacques Derrida found in the two biblical canons, she avers that real justice can emerge only by the transcendent law’s being made immanent in the individual heart, in other words, by human beings interiorizing the sense that God’s covenant is unconditional (it can be fulfilled without competition, so to speak) and requires them to act justly toward all. This formulation may seem banal—no system is better than the people who run it—or quietist—the individual’s duty is to reform oneself—but it carries profound implications for thinking about politics and legal practice. If Schwartz is right, the state, no matter how benignly arrayed with procedural niceties, can never administer substantive justice. One might further argue that legal positivism cannot work to the extent to which theology expresses a truth about the various dialectical canonical moves between substance (justice) and procedure (law), at least in liberal jurisprudence. Finally, the antidote to the ferocious hatreds spawned by accepting narratives of a jealous God can be contradicted, if at all, only on their own terms—by theology, as she has done. A liberal polity must nourish theology, because only a discourse of divine generosity can deflect possessive monotheism’s cadences. Though Schwartz argues that monotheism need not lead inexorably to violence, some commentators suggest that monotheistic systems are particularly prone to sanctioning it. John D. Dunne’s analysis of Gen Lobsang Gyatso’s political philosophy in “Compassion, Knowledge, and Power: A Tibetan Approach to Politics and Religion,” demonstrates that the Abrahamic traditions do not hold exclusive rights to rationalizing the use of deadly strength. One of his generation’s preeminent Buddhist scholars, Gyatso wrote his major work on politics, Passkey of the Fortunate, during the debates over drafting the Tibetan Charter of 1991. He sided with those whom Sangay has described as opposing the constitutional reforms advocated by the Dalai Lama on grounds that they would have lessened Buddhist influence in the government. As Dunne recounts, Gyatso argued for integrating religion and politics because suffering originates from states within the individual

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that no worldly means can properly address, hence politics alone can neither help individuals find happiness nor prescribe policies that will benefit rather than harm others. Only religion is equal to the task. Religion and politics conflict, Gyatso continues, only when one fails to understand their proper relationship. Government needs to encourage the practice of religion so that political officials behave beneficently. The most important safeguard for staving off corruption and the politicization of religious institutions comes from an uncompromising commitment to reason, which is incorruptible. Thus far, Gyatso offers what one might call a Buddhist critique of liberal instrumentalism, but at this point, Dunne exclaims, his remedy veers away from a democracy compatible with Buddhism toward a Buddhist-inflected oligarchy. The knowledge of those with greater spiritual development, Gyatso insists, supersedes the understanding of those with less, and, since compassion is crucial to an individual’s spiritual progress, a figure of great compassion may use violence on the basis of privileged knowledge. Gyatso’s political sociology, Dunne remarks, results in an authority structure that concentrates power in the hands of “bodhisattva politicians” with privileged knowledge who monopolize the ability to employ lethal force. Dunne’s discussion refutes the notion that Buddhist politics must be nonviolent. Indeed, Gyatso himself was assassinated by members of a reactionary sect he had criticized. His theory is as disturbing as his death. Dunne relates Gyatso’s telling of a story about the Buddha when he was still just a bodhisattva and had been reborn as a sea captain named “Power of Compassion.” Through clairvoyance the captain discovered that a passenger, Evil Splinter, intended to kill him and his shipmates. He reasoned that if he killed Evil Splinter, he would save himself and everyone else, even though doing so would consign him to the lowest hell. Out of compassion he killed his adversary, thereby accumulating limitless merit. This doctrine of justifiable preemptive violence is an authentic Tibetan Buddhist teaching, Dunne stresses, and it has had real-world consequences. Shoko Asahara, the guru of the Aum Shinrikyo sect that in 1995 murdered twelve people and injured some 5,500 by releasing nerve gas into the Tokyo subway, justified the attack on Buddhist principles by claiming that he possessed an ability to gain knowledge hidden from others, and that spiritually advanced practitioners like himself have the right to kill others when their irreligious actions pose an extreme danger to the group. One can discern a similar logic (secular, not Buddhist, though in the event tinged with Christian redemptionism) in the run-up to the Second Gulf War: President George W. Bush and other officials vindicated the preemptive invasion of Iraq by citing secret intelligence reports that revealed Saddam Hussein’s intention to attack his enemies. Gyatso contends that religion fends off corruption in government but advocates government led by a spiritual oligarchy that enjoys unchecked authority. Read in tandem with Sangay,

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Dunne deepens appreciation for Tibetan reformers’ fear of leaving their government in monkish hands. His essay cycles the debate, and the book, back to first premises. One can hardly read Dunne’s narrative without recalling the historical background of religious war against which liberalism emerged. Gyatso resurrects a primordial liberal fear—theology sanctions unmitigated religious violence—and response—the state must suppress sectarian conflict and minimize the appeal to supernatural absolutes as much as possible. We have returned to John Locke, James Madison, and, even more, John Rawls. One might wonder that, if Tibetan Buddhism, of all religions, can sanction violence, what hope can there be that other traditions, which have far more blood on their hands, can safely be readmitted to civilized political debate? Dunne’s chapter is the last in the volume, but the implications of his analysis should not be considered the last word. Indeed, there is no last word, at least not yet, though we have offered a conclusion that ties together some of the book’s major themes. It summarizes the various critiques of liberalism, suggests that theological predicates infiltrate even the most selfprofessedly secularist forms of liberalism, acknowledges the difficulty of reconciling liberalism and theology, and surveys modern styles of political theology, left, center, and right. We have not solved the big issues any more than have any of the contributors, though we hope to have illuminated some of the impediments to doing so. We do submit, however, that the book makes a strong case that theology can strengthen liberalism, and that doing so is too important a task to be left solely to the theologians.

NOTES 1. Mark Lilla, The Stillborn God: Religion, Politics and the Modern West (New York: Alfred A. Knopf, 2007). 2. Charles Taylor, A Secular Age (Cambridge: Belknap Press of Harvard University Press, 2007). 3. In The Future of Liberalism (New York: Alfred A. Knopf, 2009), 157–86, esp. 177–85, Alan Wolfe proposes that liberals have a “triple duty” to defend their views against conservative denominations, protect tolerance against its neo-Enlightenment critics, and defend the idea of religious freedom against postmodernists. Though this volume may push more strongly for incorporating theology into liberal discourse than Wolfe might find comfortable, his sympathy for thinking seriously about religion within a liberal framework (the first duty would seem to require some theological reflections) aligns with our views. 4. David Novak, The Jewish Social Contract: An Essay in Political Theology (Princeton: Princeton University Press, 2005). 5. How Kuyper might look applied to economics appears in the work of Roberto Unger, who has imagined a mechanism of interpenetrating economic communities

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as a way to maintain smaller-scale communities in the face of global corporations and cartels. See Roberto Mangabeira Unger, Knowledge and Politics (New York: Free Press, 1975). 6. Bernard Flynn, The Philosophy of Claude Lefort: Interpreting the Political (Evanston, Ill.: Northwestern University Press, 2005). 7. See especially Regina Schwartz’s essay in this volume. 8. It is in this sense that the Islamic scholar Mahmoud Ayoub once remarked in conversation that Islamic radicals make an idol of Islam.

I THE NATURE OF RELIGIOUS ARGUMENT

1 Naked in the Public Square: Depth of Commitment in the Liberal State Today Lenn E. Goodman

Time was when the organizers of a public meeting were content if those attending checked their weapons at the door. But in the charged atmosphere of the decades since Roe v. Wade, liberal theorists now often ask those who would take part in public policy deliberations to check their ideologies as well. John Rawls has argued that no considerations of religion or metaphysics—no ultimate commitments, then, as to truth, reality, value, or authority—have proper place in grounding public policy, or even in the debates that touch on the basics of public policy.1 Applying his own constructs of the ideals of civility and democracy, Rawls proposes that the state and its agencies, and the public at large in a democracy, must rest their political activity and political speech solely on what their fellow citizens would see as reasonable: Some might say that the limits of public reason apply only in official forums and so only to legislators, say, when they speak on the floor of parliament, or to the executive and the judiciary in their public acts and decisions. . . . But this does not go far enough.2

For democracy, Rawls argues, “implies an equal share in the coercive political power that citizens exercise over one another by voting and in other ways.”3 So voting cannot be “a private and even personal matter.” Political speech aims at the direction of public policy and is thus ultimately coercive, palpably so in any appeal to standards not universally deemed reasonable.4 Strange. For proposals are not legislation. And reasoning, even when compelling, is not coercive in the way that laws are. Rawls seems to brand 25

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as unfair any appeal to thoughts that we do not already hold. He fights shy of saying that everyone must reach the same conclusions but insists that we should invoke only grounds that all citizens will find reasonable. That still seems to mean that we should never have to hear proposals grounded in ways we might find novel, revolutionary, or instructive. There’s an easy tu quoque here. Hasn’t Rawls violated his own standard by urging ground rules for public discourse that at least one hearer might find problematic? But the difficulties run deeper. Rawls’s rule is not just self-undermining but oppressive. If the threat of sanction makes political speech uncivil, the blandest political speech will seem uncivil to some, and the blander the worse, for concealing an iron fist in a velvet glove. There are some who imagine all law to be downright uncivilized. But they object to government of any sort, not to public discourse. Rawls is mistaken to suppose that only in a democracy do the people at large become complicit in state actions. On the contrary, we are all complicit in any public acts we tolerate and condone. But the case with speech and advocacy is rather different. How can we deliberate if we do not share and air our views? Or deliberate honestly if we do not spell out our reasons? Certainly it can be distasteful to hear dogmas or see symbols one does not oneself revere. The experience can be exclusionary, presumptive, invidious. Nor is it enough to say that prudent advocates will avoid parochial appeals. The twentieth century teaches all too bitterly that invidious claims can win mass adherence for a demagogue. But hasn’t Rawls proved both too little and too much? His quarrel in Political Liberalism is not with hate speech but with religious and comprehensive ideas in the public square. And isn’t there a bias showing if we, say, silence arguments against gay marriage if they appeal to scripture but permit arguments for gay rights that hold sexual relations to be purely a private matter? Both sets of suasions rest on something like an outlook on life. Is one to be banned and the other, well scrubbed in secularity, welcomed for its seeming universality? Will there be tribunals to decide which views are comprehensive or most likely to seem reasonable to all fellow citizens? Rawls proposes no philosophical thought police. To prejudge arguments before they are propounded clearly would be illiberal. Rawls’s standards are social—thus variable and contingent—but still stifling. His holy grail is consensus, overlapping as he describes it. And if consensus fails, and there is no overlap about ultimates of fact or value, does polity become impossible? If our aim is a society whose members may differ radically, can we reach it without dialogue? Rawls’s brief is that advocacy of some one notion of the good, pled as a guide to policy, amounts to a substitution of judgment. But I find the illiberality in the exclusion of arguments thought by their exponents to be their very best. As William Galston puts it:

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It is difficult to imagine that any liberal democracy can sustain conscientious support if it tells millions of its citizens that they cannot rightly say what they believe as part of democratic public dialogue.5

How can a liberal society suppress arguments that voice the deepest convictions of its members, or those that they expect most to resonate most effectually with the convictions of the hearers whose hearts and minds they hope to win over? For a state to limit the values to which advocacy must appeal would be (ineffectually, of course) to seek massively to straitjacket both thought and action and predefine their tenor—just what we reject and abhor in totalitarianism. It is the same horror that motivates Rawls’s proposals. But, like any reaction, Rawls’s risks overstating its case and rushing headlong into unforeseen dangers, including some that it most earnestly sought to avoid. Suppose we consider the state alone, as distinguished from its members, whom Hobbes taught us to see as its constituents. Even here Rawls’s demands seem to go too far. For a government can remain so coolly neutral about the content and character of the good life as to abdicate its responsibility. A liberal state is false to its charge if it stands so aloof from such questions that its citizens are left incapable of exercising the very freedoms that are the raison d’etre of a liberal polity. Just as negative liberties are empty without the material means of their exercise, so is the rejection of paternalism a bitter charade in a society that fails to cultivate the capacity for choice that liberalism professes to regard. Independent judgment is a mockery in a society of addicts or alcoholics. A populace in thrall to illiteracy, xenophobia, or superstition, whether by policy or neglect, will find no more meaning in exercise of the franchise than does the poor man who learns that new laws give him the same right as the rich to sleep under the bridges of Paris. Rawls calls his demands liberal, despite their contravention of the central liberal idea, that individuals must be free to choose the grounds of their own choices. We are duty bound, Rawls holds, even in the voting booth, to give no weight to motives not universally deemed reasonable by our fellows. The standard may be an ideal, its best seen in the official dicta of a supreme court. But the underlying duty, Rawls insists, binds us all and is workable in practice, much as our restraints on testimony and evidence are workable in a court of law. Rawls’s elision of individual acts into public undertakings rests on the recognition that in democracies it is no longer the monarch, but we who are the state. Indeed, Mill’s recognition of the power of social pressures might push the point further, to include as public discourse even reflections far removed from public deliberations. There is some merit in the idea. We have a responsibility to avoid not just libel but gossip and to refrain not just

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from censorship but from censoriousness. But Rawls makes these not just moral but political obligations, fearing lest we injure the social compact by what we say or even think about our inmost beliefs and purposes. Value schemes that make, say, honor, altruism, or the public interest paramount are especially problematic for Rawls. He inclines to call on reason to adjudicate value disputes. But he knows there are rival views of reason’s dicta and rival appraisals of its worth. So, with a bow toward pluralism and a tip of the hat to the home team, he turns to culture: we assume that all citizens have a rational plan of life that requires for its fulfillment roughly the same kind of goods. . . . This assumption is of great importance for it enormously simplifies the problem of finding a workable index of primary goods. Without restrictive assumptions of this kind, the index problem is known to be insoluble.6

The proposed lowest common denominator here would be money, a huge stipulation. For despite its usefulness in equilibrating deserts, few would make money the sole and simple lowest common denominator of public or private good. Some would place health or education or artistic virtuosity ahead of income and many another index of well-being. Some value simplicity or ecological minimalism, or biodiversity. Such values may be incommensurate. The ideals of piety or learning, humility or self-sacrifice, scientific or artistic discovery, are not readily lumped together, let alone given a common measure, as the conflicts of conservationists with animal rights advocates too often reveal. Where is the culture or society whose members share a single life plan? Even in the tightest human group individual differences loom large. Isn’t it the role of government, and of politics in general, to help us find a way of living together and indeed collaborating, even though our life plans and underlying values differ substantially? Money helps, because it fosters independence. But it does not bridge our value differences. Rawls’s demand for homogeneity, like his posit of a “closed society” whose members are born into citizenship,7 makes his model brittle, artificial, and tendentious. He lays much stress on intuition, hoping, perhaps, that some cultural values can be dismissed as nonintuitive. But in a society like ours, where vampire imagery is romanticized and the Marquis de Sade lionized, one should not be complacent about what will be dismissed outof-hand and what will seem appealing, given suitable promotion and a suitable background to push off of. Rawls bases one definition of the political neutrality he seeks on Ronald Dworkin’s thinking, arguing that the state should do nothing meant to favor or promote any particular comprehensive doctrine or its advocates rather than another.8 The formulation draws its appeal from familiar norms about the separation of church and state, not a universal or intuitive idea. As Philip Hamburger has shown,9 the notion stands on doubtful constitu-

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tional footing even where it is familiar, in the United States. Historically, the original demand, written into the first article of the Bill of Rights, was for nonestablishment (sometimes, disestablishment) of religion. It was the secularism of some nineteenth-century thinkers, seconded by anticlerical and anti-Catholic nativists, that put wind in the sails of the notion that the Constitution sets a “wall” of separation (Jefferson’s image in a letter to the Baptists of his day) between church and state. That reading begat the notion that any state acknowledgment or support of religion (appointment of legislative chaplains, or allotment of funds to faith-based colleges, or vouchers for religious education) runs afoul of the Constitution. But Rawls’s language masks this genealogy in an appearance of sheer deduction from the basic moral givens of democratic interaction. The effect is less to guide than to obviate the tough calls we typically leave to jurists about the proper interactions of government with religious ideas, beliefs, institutions, and practices. But Rawls’s abstractions sweep away secular ideas as well, catching in the same net systems of metaphysics and “worldviews” that share the comprehensiveness ascribed to religious outlooks. The steady intent is to preserve what Rawls calls “neutrality of aim”: the state and its rulers (in a democracy that means all of us) must not take sides as to the aims or goals of human life.10 Rawls’s target is invidious attempts to foist as universal an outlook or doctrine that does not have and is unlikely to win universal adherence. But his strategy is the demand that we all abandon the ancient idea that the state is somehow responsible for the ethos that sets the standard for lawfulness and frames our quality of life. The common culture is left to whatever influences may come along to play upon it or to prey upon it. This soi-disant liberal tilting of the keel of the ship of state clears the deck of all but the most self-serving projects, be they commercial or political or even sectarian, provided they are dressed in clothing plain enough to look neutral or exotic enough to look nonsectarian, stripped of the familiar markings of the more entrenched varieties of sectarianism. Pressing further, Rawls reformulates his ideal of neutrality, now drawing on the work of Joseph Raz: the state must do nothing to promote any particular idea, unless steps are taken to cancel or to compensate for that effect.11 The new proviso is redolent of Rawls’s well-known notions of compensatory justice. Here the state does enter the ethos business, but only to correct a perceived imbalance. The aim again is to exclude all favor for a particular comprehensive idea. But see what is actually excluded. Some of us might think public education a public good, since it enhances the prospects of its recipients for achieving various worthwhile human aims and enlarges their experience and their capabilities for aiding and understanding others. But a legislator who hopes to implement such an understanding or even a citizen at a town meeting who urges

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such designs is promoting a particular view of the human good. So is one, very often, who seeks to fund a campaign discouraging smoking, alcoholism, gambling, or drug abuse. Or one who campaigns against incest or polygamy. Public education, public libraries, and parks may be valued in hopes of making us freer, richer, more competitive. But those values are not universally admired, or even universally deemed prudent, let alone reasonable. The claim that education that might help us grow wiser or better would seem, on Rawls’s account, permissible only in private schools. Health care aiming to make us saner citizens or better parents, public programs for building and staffing parks, museums, or libraries meant to make us more cooperative, more communicative, more sensitive to the world and one another, would remain the province of private foundations—and even that would be problematic in a democracy. Parents, in Rawls’s moral world, may pursue any educational ends that are to their liking—but only in private schools, and only if the children are not kept ignorant of “their constitutional and civic rights so that, for example, they know that liberty of conscience exists in their society and that apostasy is not a legal crime.”12 That lawyer language pictures education as an arena of warring constituencies. Schools are brigs, and intellectual freedom is a right of extreme resort, like habeas corpus, not a lived reality. But surely not all pedagogy is grounded in incarceration and indoctrination, and not every effort to instill values must be narrowing and coercive. Is a curriculum designed to foster critical and creative independent thinking to be excluded from publicly supported institutions if its aims and means are built on suppositions about what constitutes a wholesome and fulfilling life for well-rounded human beings? Can the narrower goals of promoting good citizenship or training in marketable job skills escape condemnation simply by enunciating a thinner, shallower rationale? Don’t even these pallid hopes also make assumptions about human worth and potential? Are minimal and pragmatic expectations any less tendentious and particular for their abstractness and artificiality? We hear many rival claims on our public educational and recreational resources. We can expect support for varsity sports, bolstered by claims that engagement (paradoxically) promotes both competition and team spirit. Music and arts may languish. Title IX may be devoured by football. But Rawls seems, willy-nilly, committed to condemnation of campaigns for the return of arts education or the preservation of women’s athletic access, if the appeal is to any comprehensive notion of the whole person or the good life. Partiality will fare better. There are elements in our culture and tendencies in our intuitions, even our instincts, that might prefer exhibition sports, bingo, beer, or pot, to museums, nature preserves, research institutes, or medals in mathematics,

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history, or literature. What business has the state in preferring educational, intellectual, or cultural goals, or public parks and wilderness areas? Is compensatory support due to all alternative visions—grants for graffiti, subsidies for those who would love to play the horses but lack the wherewithal for a meaningful bet? Recompense is not sufficient if it merely enables alternatives. It must actually negate the impact of rival programs that foster a particular kind of life or outlook—or state power has been abused. Legislators might suppose that day care centers are valuable, in opening up children’s potentials and freeing parents to pursue vocational or educational goals, or simply to enjoy a respite from the demands of childcare. The evidence is that affordable day care reduces the incidence and severity of child abuse. But policy decisions here make assumptions about what counts as human development and indeed fulfillment, both for parents and their children—presumptions that can be controversial. Some people deem preschools a positive evil. Can the state make decisions here? Can citizens in a democracy deliberate and state their mind about such things, or about divorce law, or universal national service, or welfare policy, without breaching neutrality? Can we really come together to legislate in the public interest without examining any question about what ought to count as a human good? Despite Rawls’s rhetoric about reflective equilibrium, it does no good simply to punt in the direction of “the” culture. There are many cultures in our society, and many subcultures in any modern society. There are also many individuals whose cultural commitments are unformed or formative. So it does not help to appeal to “our” intuitions, as if these were coherent and decisive. We differ on value questions and may be open to new values and ideas—or a rehearing for old and rediscovered, redefined, or reappropriated ideas. Many of us expect to profit by hearing one another. But Rawls’s ideal presumes an artificial, static society. He has abandoned Dewey’s quest to transform our actual society into an experimental laboratory, lost confidence in Mill’s marketplace of ideas, and lost sight of Bergson’s quest for an open society. Rawls does propose to limit his restraints to “constitutional essentials” and “questions of basic justice,” such as voting rights, equal opportunity, property rights, and religious tolerance. So he excludes from his censorship “much tax legislation, many laws regulating property; statutes protecting the environment and controlling pollution; establishing national parks and preserving wilderness areas and animal and plant species; and laying aside funds for museums and the arts.”13 But does the exclusion work? In a telling, but soft-pedaled admission, he acknowledges that such concerns “sometimes do involve fundamental matters.”14 In a money economy like ours, where revenues are fungible, or in a litigious society like that of ancient Athens, or any society where rights matter

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or precedence counts—in any human society, then—it is both easy and natural to trace claims to fundamental principles. That’s what lawyers do when they press a matter in a higher court. Christmas trees in the mall, flag burning, lap dancing, the Pledge of Allegiance, blood transfusions, exorcisms, health care—all have been claimed as matters of basic rights. It is not just free choice about abortion that has been made a constitutional matter. So has the “taking” of property by regulatory agencies and “unfunded mandates.” These affect seatbelt design, toys, ladders, scaffolding, automobiles, food labels, and drug and cosmetic testing. The more detailed the regulation, the more ardent and conceptual the protest. Alcohol earned two constitutional amendments, one for its prohibition, the other for repeal. Is medical marijuana a fundamental right? Many say it is. Many have argued that tax dollars should not be used for parks, schools, stadiums, highways that they have no intent to use or desire to see built. Can the environment be protected, or public security be maintained, without the prospect of encroaching on what someone will deem a basic right? Can any legislation be drafted or funds spent without raising fundamental questions about the aims and goals of those who will live under the resultant laws or foot the resultant bills? Access to restrooms, drinking fountains, buses, and lunch rooms has long been recognized as a matter of basic rights. Claims are now made that same-sex marriage is a basic right. Likewise the acceptance of gay scout masters and gay ministers. From prescription drug benefits to disabled access, social security, welfare, tenant relations, working conditions, and affirmative action, it is hard to find an area where claims are not treated as matters of fundamental rights. Do we have a firm basis for restricting the category? It can’t be done a priori. That would call for some “comprehensive” doctrine. Litigation has a dynamic of its own, expanding rights claims to ever new categories—rights for animals, for trees, for cultures. I prefer to speak of deserts here, and seek their equilibration, rather than make all claims trumps and settle down for a battle royal over the resultant conflicts of rights that advocates find inevitable and profitable. But my assumption, that conflicts can be resolved fairly, that tragedy is not inevitable, that politics is more than mere struggle, is a product of my ideas about justice, truth, and equity that have no standing among the advocates and no status among the lobbyists.15 Where exactly do basic rights find their limit? Clearly not in subjectivity. Would a religious or philosophical standard help—by defining real differences between, say, injustice and inconvenience? Some notion, even some debate, about what Norbert Wiener called the human use of human beings might help us in laying out our priorities, warranting our standards, justifying our “intuitions” to one another, and perhaps making better sense of them to ourselves. But Rawls has ruled that out of court.

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Do game parks that exclude aboriginal populations from their native lands or burial grounds raise no questions of basic human rights? Do property rights not clash with pollution standards in ways that demand prioritization of our values? Day care centers do reflect a certain view of human life and how it should be lived and fostered. So do our rules about gender in the military, or the workplace. Are all such questions to be answered presumptively? Can we distinguish male from female circumcision without reflecting on the human use of human beings? Or distinguish proper from improper use of peyote? Or discriminate Branch Davidians or Scientologists from Seventh-Day Adventists and Jehovah’s Witnesses, without asking what ought to count as spiritual discipline—or free choice? Rawls insists that deliberations in a democracy involve the open and equal engagement of its citizens. But he takes back with one hand more than he gives with the other when he excludes all appeals to religious or comprehensive philosophical ideas. Applied consistently, that would exclude all appeals to basic rights, unless those appeals were already deemed reasonable.16 But, as Eugene Garver ably argues,17 good rhetoric does not just tell us what we already know or would like to hear. Its reasoning is ampliative. It opens up our thinking to the consequences and demands of values we already hold (but perhaps do not hold close enough) and teaches us something about the values we ought to hold. I think we need much more appeal to principle in our public moments and rather less of the assumption that appeals to interests are eo ipso legitimate. The equation of justice with the bartering of interests is itself a comprehensive view. But that notion (which seems to slip through Rawls’s net) obscures any opening to higher values that might reconcile conflicting or competing interests, subordinating some, coordinating others, in behalf of a larger good. Rawls, like many philosophers who grew up in the analytic tradition, tends to think of all outlooks as axiomatic systems, analogous to formal logics or artificial languages. But moral systems, like cultures, are not axiom systems.18 What counts as a premise in one context is an inference in another. The outlooks of real human beings are much more piecemeal and shifting than the stereotypic worldviews and belief systems, mentalities and paradigms that some anthropologists construct or philosophers imagine—much more open textured and receptive. Debate may unsettle or reconfigure the outlines and color masses. The picture of our values, if it could be painted, would not be painted by the numbers. I do not see how invocation of a principle is coercive. Nor do I see a better place for invoking principles than in our deliberation. That precisely is where they are needed, and public deliberations are often a chief source of their concreteness. It seems bizarre to expect unanimity on core questions—unless the shadow notions now licensed in the name of reason are

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watered down to the diluteness of platitudes. And even these fail of unanimity. Some of us abhor platitudes and will complain that such nostrums are equivocal and leave us unsure what we are asked to endorse or how a plan of action hinges on the banalities offered in its favor. For me, even the approach of unanimity sets off warning bells. Deliberations need nonlinearity, opinions unheard and unheard of, perhaps from depths as yet unsounded. Complacency is as much an enemy as coercion, and far more insidious in a democracy. Rawls has his standards of the reasonable, of course. Seeing that political cultures differ, he calls on thinkers to delve into the culture they inhabit and “unfold” its distinctive features, lifting out the overlapping consensus that the reasonable could be expected to endorse. Nicholas Wolterstorff elegantly captures the silliness here: The thought, I take it, is this: it would be absurd to require of us that we never choose or advocate a policy unless everybody agrees with us on that policy. Rather, it is the reasons for our decisions and advocacies that we must attend to. . . . As to those reasons, it would again be asking too much to require that we use only those reasons that everybody in fact accepts. . . . All that can be required is that we confine ourselves to reasons that it is reasonable of us to believe would be generally accepted. . . . It cannot be all our fellow citizens whose acceptance is critical. There will be some among them who are not reasonable on the issue. . . . In short, the reasons that one must use in deciding and discussing political issues are reasons about which it is reasonable for one to believe that they would be accepted by all those of one’s fellow citizens who are reasonable on the issue, and whose thought about the matter is rational.19

Rawls’s modest proposal founders on suppositious reasoning about what reasonable people would deem reasonable. The gaping hole is the old fallacy of presuming agreement among all right-thinking individuals. But persons who disagree on policy matters often disagree on epistemic matters too. Just as litigators and their advocates find basic rights to support their more immediate claims, so can epistemologists readily pin any value question to a suitable cultural standard. In any democratic society big enough to confront constitutional issues, there will be skilled advocates who can make most any position seem reasonable and consonant with a broad consensus of widely held views. Rawls’s homogenizing proposal smacks of the attitude sometimes voiced in pub discussions where a challenge like “That’s a value judgment!” becomes a conversation stopper. But in policy matters, that’s often where debate should begin. Rawls’s new censorship all but asks deliberators, in the name of ethics, to leave their minds at home—a new twist on the veil of ignorance. Instead of the heuristic exercise designed to discover what we all

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would (or should) choose if ignorant of the roles we would play in some imagined state, we are asked to do genuine political planning blinded not only of our interests but of our highest and most universal values and concerns. I have three problems with the proposal: 1. If taken seriously it will impoverish debate. The obvious snag is Mill’s argument that all points of view must be actively considered if any are to win real conviction. But there is a prior, more practical issue. Commitments about reality, truth, and value mobilize our social and political energies. Absent such commitments, normative claims are unfounded and ungrounded. That leads, if not to nihilism, then to an aimless conflict among competing claims, with no basis for prioritization (and thus legislation) or even for dialogue that might yield pivots of policy or fulcrums of argument. 2. The proposal cannot be taken seriously. The realistic outcome is disingenuousness, disguise of religious or ideological motives in secular or neutral garb, and the secreting of metaphysical principles in the carryon baggage of logic. Rival views are ridiculed or stereotyped, branded as irrational or alien, too new or exotic to fit in “our” culture or too abstruse to meld with an overlapping consensus. The real reasons for proposals, left unharnessed, are unstated publicly and so untested where they might have done some good and perhaps even improved through critical exposure. 3. My third objection is the tu quoque mentioned briefly at the outset: Rawls’s proposal violates its own principle. Its garb of gray neutrality masks both religious and metaphysical foundations. For it privileges secularity and thus advantages secularism, presuming that religious and other clusterings of core values are parochial in their interests and provincial in their perspectives. It treats all higher order commitments dismissively, as if they must be nugatory or negative in net moral worth unless some secular wash can be wrung from them. I find much to doubt in such presumptions. But the presumptions themselves belong to a religious tradition and bespeak a metaphysical program. They assume or presume the most contentious elements of that program and the most controversial underpinnings of that tradition. Let me say a little more about these three problem areas.

1 Clearly, one of the great achievements and desiderata of pluralistic societies (and there is no society today that is not de facto pluralistic) is the tamping

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down of common ground for practical use. It is not foundational axioms but shared interests and mutual accommodations that allow such common spaces to be cleared. But without dialogue about the values underlying our diverse communal and personal goals, the necessary accommodations become either cynical or vanishingly difficult to achieve. Without the emergent understandings that dialogue can foster, the values and ideas that would underlie pragmatic accommodations are lost sight of, leaving only the letter of the law, the fine print of the contract, the behavioral adjustment, without the spirit to lend life and guide commitment in the implementation. When business, or government, or the free press, or technology and invention, or even religious institutions become ends in themselves, the goals those institutions might have served lose their import and importance. The aims of each enterprise, no longer questioned or contested, or related, beyond lip service, to any common good—whether truth, or the good, discovery, or piety—are isolated. The institution or the practice becomes a headless monster. With dialogue about our diverse goals, common ground often becomes visible. It can be seen again when conversation touches higher orders of generality. Abstraction is a useful tool here. But it needs overarching principles and images, including many that Rawls might find alarmingly religious or metaphysical. It is in our large systems of ideas that we humans typically find the common themes to unite our thoughts and the structural affinities underlying local truths. The logic of our metaphysical commitments, meanwhile, grows clearer as the family resemblances in our diverse ways of pursuing distinct but often complementary goals loom into view. So the life given to our ideas by sincere probing of our deep commitments is both of practical and intellectual worth. But consider just the simplest case, the energizing of commitments. How could the arguments against slavery have been articulated in the nineteenth century without appeal to the religious idea of human dignity, or the metaphysical idea of existential equality? How can such arguments be sustained today, from Mali to Louisiana, Orange County, or Staten Island, without appeal to comparable ideas? Or can we just presume on our culture’s abhorrence of slavery, and hope (but hardly pray) that the culture remain as it is and not revert to what it was? For the old arguments are unlicensed now. We cannot expect our public school children to learn “The Battle Hymn of the Republic.” In time, they lose even the words to disagree with the idea that slavery is a fine and useful thing, or to object to the chatelizing of women, or abuse of children.20 How can we articulate the claims of biodiversity without reliance on metaphysical notions as to the grandeur or sublimity of nature or the preciousness of plant and animal life? Isn’t it a metaphysical claim that inflict-

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ing gratuitous suffering is wrong? How else can we condemn torture, or grinding poverty, or cruelty to animals? If the liberty to pollute one’s lake or swing one’s cat is to be abridged, how is the issue to be debated and the restriction warranted without appeal to intrinsic values and their interplay with all that we (or others) care about? Isn’t there a religious claim at the heart of the idea that rape and the sexual exploitation of children is wrong, even if they do no physical harm? Can we say, without a comprehensive view of things, that such violations are more heinous when perpetrated by a trusted family member who violates the circle of trust that should safeguard an emerging personality? Are laws against incest to be dropped because so few citizens can articulate a rationale for them without turning to some religious notion of personal sanctity or metaphysical notion of the boundary between public and private, or the interface between individual identity and the familial matrix? Or do laws about such matters not regard basic human rights? Rights here are not negotiable, a point that Rawls faintly suggests when he speaks of lexical priority. Freedom is not for sale; dignity is not a perquisite to be waived. That is what our founders meant when they called certain rights inalienable and God-given. The argument, implicit: Natural rights are grounded in our urge to live and flourish. They are the signet sign within us of God’s will and work. Is that an argument from authority? Not in this case. Inalienable, in the language of the Declaration of Independence and its audience, denotes the futility of seeking to deprive us of the power to protect our interests, since no living being willingly surrenders that. “Endowed by their Creator” meant much the same, with the further caveat that the laws of nature are God’s laws, their stability, the mark of God’s sovereignty; the thirst for life and urge to prosper, a vivid mark of grace—far clearer evidence than any for the strange and suppositious appeals of rival thinkers to the divine right of kings. Metaphysical ideas like natural rights and religious ideas like Godgiven dignity can move human beings, become battle cries of revolution, watchwords of a nation’s laws, rallying points of shared identity in times of siege and trouble. Abstractions about lexical priority have yet to show a similar power. The claim that rights are trumps sounds more like advice to a litigator than a battle cry against tyranny at home or oppression abroad. The rhetorical power of words like ‘God-given’ or ‘inalienable’ comes not from the sounds they make but from the ideas they stand for—metaphysical and religious ideas, standing as interpreters for each other, building bridges, not barriers. What does set up a barrier is the militancy and closed-mindedness of enforced incomprehension that bans all talk of nature and its laws and forbids all fraternizing across the lines with any who would speak of corresponding obligations, imprinted in the scheme of things by nature’s Creator. That

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kind of exclusionary dogmatism only further estranges the idiom in which ideals of historic import have been voiced. Just as one philosopher’s modus ponens can be another’s modus tollens, so in matters of religion the worship of some is the abomination of others. For we call divine what we honor as the highest and certify as sacred those norms we place furthest from the frayed edges of our web of values. So any tint of axiological difference (even in style!) compounds our epochal and ethnic diversities, heightening the contrasts, whether real or perceived. But here, in one of the home-truths of de facto diversity, we find a comforting response to worries about arguments from authority: As long as we inhabit an open society, not one where dogma rules, appeals to God or scripture will carry no more weight than culture and tradition can impart. In the welter of competing claims such appeals will be carried by their worth and the impact of the arguments in their behalf. In this sense we all stand naked in the public square: public rhetoric will ring hollow as long as it is unsubstantiated by public interests and unechoed by public concerns. But that makes it safe to open our public discourse to diverse interpreters, hearing their pleas, not for their rituals or dogmas but for our common dignity. We can learn from those whose wisdom makes them our teachers, even when their insights, snatched from the empyrean, settle only in poetry—not just the Dalai Lama, whose exotic roots make him stylish (and all the more so if exotic beliefs make him seem no real threat to our live options), and not just to Elie Wiesel, who speaks for a suffering that can still silence carping objections to his standing, but to the corner minister and the local rabbi. Granted the open society is an ideal, not an achievement on the ground. Pockets and great satchels of dogma still exist. But philosophical metaphysics holds sway in none of them. Religions are still the common way for humans to articulate their values, weigh the imponderables, and touch the intangibles that are the hallmark of our humanity. Even our most secular alternatives still bear the impress of the religious traditions from which they are sprung. Dogma does still thrive, but its power is hardly confined to the churches—which are, barring a few cults and cultish groups, voluntary associations. Even where religious doctrine is a dim and garbled memory and the niceties of metaphysics are unknown, dogma survives as cant where conformity is a passport. Yet homogeneity of ideas is not the reality in our world. Too many new and old ideas and claimants to authority drown one another’s voices. So few appeals to faith or piety will be respected or even recognized beyond the ambit of their most immediate audience. Authorities may command the reverence of their followers. But their claims (if heard at all) are regularly tested against the good sense and the familiar values of their hearers. My argument is that the best place for such testing is in the open air. With issues of public concern, that means the larg-

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est public forum, where ideas, practical or speculative—including visionary claims and dark night thoughts—must face not just the cold light of day but rival claims, current notions, and untried inspirations. Philosophy acquires an obligation here, to listen thoughtfully, with the kind of open mind that is more readily bragged of than held to, testing the logic and pragmatic reach of all claims to inspiration. This work of criticism (which is easier than its creative role, but not unrelated) is not infallible. Motives are not always pure. But when it comes to assaying the speculative implications and practical applications of religious and metaphysical notions, openness is an ally, letting in the light, not an enemy. My plea here, against Rawls, is in behalf of openness and against obscurantism. For liberal obscurantism, to give a name to Rawls’s proposal, is just as closedminded as its most sectarian alternatives. It is argument in the end, not dismissal (which only bowdlerizes text books and balkanizes discourse), that is effective in dissolving specious claims. Analysis can expose what is rotten, where dismissal only paints or papers over. But dialogue opens doors, allowing those who engage with one another’s thoughts—even the darkest night thoughts—to penetrate the values that motivate those thoughts, allowing synthetic work to seek the higher meanings that may lie within or behind or beyond them, to find more in what is deemed sacred in a tradition (just as it may find more in art) than can be accessed by the cruder and more parochial readings of insiders—or the neglect of hostile outsiders. The payoff from such intellectual openness can be a very practical matter. When public debate turns to lotteries and other forms of legalized gambling, or to prostitution, pornography, or violence in videogames, religious voices can bring something more to the mix than is heard from more pragmatic interests. Secular liberals may be distracted from the regressive effects of lotteries by the promise of proceeds for educational or cultural purposes. Seduced by specious appeals to personal autonomy, they may ignore the impact of compulsive gambling on individuals and families. Lulled by libertarian rationales, they may even overlook the devastation of narcotic drugs (as though addiction ever, let alone as a general rule, enhanced the autonomy of its victims). They may be swayed by the notion that lap dancing is a form of free expression, to be cherished as a bastion of artistic freedom. Moved by the mythic primacy of eros, they may read prostitution as a sheerly consensual relationship, willfully overlooking the coercive and exploitative role of pimps, the stranglehold of drugs, the risk of AIDS and other STDs to the prostitutes and their clients, and the clients’ partners and offspring.21 Liberals need not so blind themselves. But they often do, typically out of commitment to points of principle that are in fact metaphysical, regardless of their labeling. Just as liberals would rather see a hundred criminals

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walk free than convict an innocent, many tolerate the semiotic degradation of women rather than restrict the absolute liberty of eros. They may mask their absolutism in empiric claims, arguing that the harm of hard-core pornography is undemonstrated—as though every act (and not just every person) were innocent until proven guilty. But their doggedness, especially when they run hard against the evidence, suggests an a priori force in the apologetic, a motivation that is not empiric but moral. In such contexts it is well to hear a rival voice, with alternative metaphysical commitments as to the values to be privileged. For the humanism that invigorates some of our religious traditions will give the postures and uses of human bodies and spirits cosmic weight and significance. It will deny that we are social isolates with no obligations to one another beyond what we contractually assume. Religious voices might well urge that we bear obligations forbidding us to stand idly by at the degradation of another human being. If, in arguing that point, those voices slip out of such metaphysical language and turn to scripture, to remind us that in God’s eyes we are indeed our brother’s keeper, the effect (for those who do not stop up their ears to God-talk) is not dogmatizing but clarifying. For the language of metaphysics is abstruse. Far more concrete is the idea that we all are bound together by the claims of interdependence and the imperatives of love. That language turns the argumentative abstractions vivid, even graphic. It sets before us (as Levinas has it) the open, pleading faces of those we would too readily neglect, fastening their eyes on us, as if to say: Do not kill us. Do not degrade us either, or let us sink by your silence. Religion at its fairest reach welcomes the light of day. It has nothing to fear from open and public debate, even of its mysteries. Nor has the public anything to fear from exposure to religious ideas. They will not be taken seriously beyond the pale of their particularity, if their appeal is parochial. But they can be useful. For religious ideas, even those that are called mysteries, are expressions of ideals. They will not explode on scrutiny, although they may be sublimated if they fail to pass muster on simple-minded readings. This much is clear from the very selection process by which ideas win religious awe. Religious ideas often have multiple levels of meaning, and their exposition opens up their rich symbolism to thoughts that reach for a universal hearing, straining tiptoe, not just to hear but to be elevated. Religious values become such only by their earned (or sometimes unearned and undeserved) claims on transcendence. It is the reach of these claims that allows religions to adapt in response to challenges, readily or grudgingly discarding as no true part of their own vision any value that is effectively discredited. The highest spiritual values, as a result, soar above the seeming countercases that overturn their feebler applications and more myopic interpretations.

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Viable religious ideas will not harm the common good. For all their moral force stems from their appeals in behalf of that good. Any other force they have is deservedly dissolved; and specious moral claims, while they will always be made, are the most readily exposed of all falsehoods. So if a faith calls its faithful to suicide bombings or other acts of desperate fanaticism, those calls will wither in the light of day, scorned and condemned by common opinion, rejected by every worthy and credible spiritual leader. For all forms of fanaticism hate the sunlight, where they might be judged by unforgiving eyes. The inspired thoughts and received traditions of the world’s religions, by contrast, have much to communicate to the peoples of the world and its leaders, especially when the exigencies of public debate and a shared discourse focused on common human needs and aspirations can draw them away from parochial perspectives and narrow interests. An open dialectic between religious ideas and our various canons of practice in the realm of public policy will lead to a refinement of both politics and religion. Policymakers will raise their eyes from the reports of commercial lobbyists and narrow sectarians. Spiritual leaders will manifest their bona fides by overcoming the narrowness that might belie their spiritual claims and will seek higher ground by welding common human needs and aspirations to the transcendent ideals that alone can give authority to their counsels. What possible use, after all, has an idea locked in the inner citadel? How can such ideas grow and flourish or be tested or modified? And how can a culture thrive or a society learn if it hears only thoughts it already knows, or arguments that fit patterns it already accepts? The chief fear of those who seek to guard us from appeals to religious thoughts, sacred texts, inspired traditions, and revelatory utterances is that such appeals will infect our laws and ordinances (worse still, our political discourse) with musty standards unconscionable to many. The worry is strikingly selective. Secularists may struggle against religious claims about euthanasia or abortion. But they seek religious allies in their battles on these issues, and all the more so, in opposing vouchers or school prayer, the posting of the Ten Commandments, or the teaching of “creation science.” In campaigns against capital punishment or world hunger, or in support of environmental concerns or homosexual marriage, religious rhetoric is welcomed, as it was in the fight against apartheid and segregation. The selectivity goes further, since there are popular and unpopular wars, salient and subtly countenanced sweatshops. Mao and Stalin did not get the same bad press in their day as did Verwoerd. Clerics, too, are sensitive to such things and all too easily co-opted. But that is a politicization of the religious office, not an invasion of politics by what is properly termed religion. What is needed is a critical voice, like that of the ancient prophets, who spoke out without fear of priest or potentate, allowing a pricked conscience to judge

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of right and wrong, sacred and profane, beyond the dicta of state counsels and cynical synods. Clearly we should resist the suborning of state authority in the service of sectarian interests, the imposition of religious dogmas and unwelcome practices whose meanings and associations are not accepted freely by those on whom they might be foisted. Spiritually there is grave danger in the loss of sincerity. For sincerity is the first line of defense against the abuse of religious authority and the first (but hardly sufficient) guarantor of religious authenticity. Religious establishment breeds hypocrisy and corruption, which undermine the very values that make religions worth exploring.22 There’s enough hypocrisy attendant on the institution of religion without compounding the problem by confounding the powers of the state and the privileges at its command with the genuine questions of moral worth and spiritual merit, intellectual honesty, and human desert and need that are the proper sphere of religious thought and action and the proper subjects of religious recognition. But what follows from this is the need to separate religious from political institutions, not to isolate the realm of policy from the realm of thought insofar as thought raises its eyes above the pragmatic. For that latter approach will only confine policy to the most mundane and reductive plane—as if to say, for example, that the state has no real or legitimate interest beyond the instrumental in preventing suicides or promoting healthy births and happy childhoods, that for matters of public policy no intrinsic worth is to be assigned to individual human lives and the quality of those lives. Education would matter instrumentally, vocationally, but not as an end in itself. Births would add prospective bearers of arms, and health would strengthen prospective workers. But no value would be placed, legislatively or politically, on human life itself or the potential richness or impoverishment of human experience. That, I insist, is not just an arbitrary narrowing and lowering of our gaze, but itself a metaphysical stance, not just spiritually fraught but spiritually problematic. All this for the sake of rejecting one kind of input in public deliberations, on the grounds of past usurpations in its name. Religions, when they find their proper places in public debate, will not be not arbitrary arbiters of values but advocates for the values each claims to know best and care for most deeply. The differences among religious traditions will not be a scandal or a disparity to be overcome, but each tradition will offer a vantage that allows testing of the rest, the cross-checking that can validate or refine, enlarge or learn from diverse claims to insight or inspiration. But why talk of religions here? Why not refer solely and simply to rival communal traditions, personal tastes, and intuitions? The fact is that for most human beings, for most of human history, value commitments are

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articulated and transmitted, adjusted and revised religiously. Few of us rise (or sink) to the level of abstraction that can be called metaphysical, and even they are barred by Rawls’s proposal. This brings me to my second complaint.

2 Our adversarial legal system has hailed victims and their families into court, to testify in sentencing hearings as to the harm and pain a criminal has inflicted—lest juries be overly swayed by clever advocates’ promotion of the sense that the criminal is the victim. But when a victim’s family speaks of forgiveness, we need to recall that theirs is not the only injured interest. A criminal has offended against the state, against society at large, and against the law itself. That is why crimes are a public matter, distinguished from civil cases, where the state may rightly act as referee. Here there are points of principle in play. Questions of retribution arise. And these raise metaphysical questions, asking if the public has a proper response to make to the commission of a crime. Is there a message to be sent, a symbolism to be enacted? The diverse answers to such questions broach metaphysical issues to be debated, not finessed, kept in the open if we seek a balance between the forward-looking and backward-looking concerns of law. But metaphysics has been disallowed. In On Justice I argued that deserts reflect a being’s claims and so cannot be negative. Justice, as Plato suggested long ago (Republic I 335), would not diminish those we hold accountable. Rather, I reasoned, just punishments should be seen as a scaling back of privileges accorded presumptively in a social context.23 The presumptions made feasible by our engagement in a community are defeasible by acts that violate the social trust that grounds them. Such reasoning warrants a retributive account of punishment and underscores the difference between retributive and vindictive acts. A properly retributive account, I argued, is necessary to supplement the concerns of deterrence and reform, lest forward-looking rationales for punishment push us into the realm of arbitrary and preemptive punishment. My metaphysical story explains why embezzlers and stock market manipulators are not to be trusted with the sorts of instruments they have abused and why sexual predators are not to be trusted with young people. Yet, as I acknowledged in On Justice, it does not answer all questions about punishment. Like many Americans, I long opposed capital punishment, reasoning that even the worst of us is in principle redeemable, and that it was wrong to snuff out even an unredeemable life. That seemed a waste, an act of violence and a wrong against the laws of being. I did not try to rationalize by arguing that capital punishment is no real deterrent. That seems to

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be a red herring. After all, we would not reinstitute drawing and quartering even if it did deter crime. If capital punishment is cruel and excessive, perhaps it should be eliminated, my metaphysics urged. But after the Manson case, and Eichmann, instinct pressed harder the other way. Here my general theory of deserts did not seem decisive. It offered no clear rationale for capital punishment. But it did not convince me that such punishments are never warranted. And I had no theory to explain why. Religious counsels would not be irrelevant here—to hear the Pope’s pleas in behalf of mercy, although he is taking part in politics when he opposes executions worldwide. I would like to understand his arguments better—and to live in a world where such arguments were unneeded. The biblical demands for capital punishment (e.g., Gen. 9:6) are pertinent too, as is Maimonides’ elucidation: It is not mercy but cruelty to subject people to murderous acts by failing to exact justice.24 I do not see conclusive arguments on either side. But experience rears its head, holding me to the stance I took in the wake of Manson. I would not mourn to see Slobodan Milosevic and all his crew hanged, along with all perpetrators of atrocities, from Pol Pot’s thugs to genocides of Rwanda. But I would not silence the Pope. Perhaps he will sway us one day, by the power of his reasoning, or the change of circumstances. His counsels, and the counsels of the Mother Theresas and Mahatma Gandhis of the world, are relevant and welcome, even if one disagrees. Especially if one disagrees. Even a philosopher needs to know when to say, “I do not know.” What we are tempted to say if a notion does not fit our philosophical schemes is that it cannot be right or true or real. But that assumption works only if our philosophies consist entirely of tautologies, that it would be self-contradictory to deny and unintelligible to question. When we venture into metaphysics, sheer formal logic offers no such snap-jawed aid. The remedy, for much of the twentieth century, was sought in the avoidance of metaphysics. But the avoidance was only nominal. For metaphysics in the relevant sense includes all value commitments, especially on questions of ultimate or intrinsic value. So it hardly made sense to issue an imperative against value judgments. It was not just unrealistic. It was nonsense. We humans are valuing creatures. Almost every word in our many natural languages is value-laden, including the ifs, buts, ands, and ors. Modus ponens itself is a norm about reasoning—one that it’s best not to dispute. But as for the norms we do debate, no one presses value issues without value commitments. The big ideas of God, Truth, beauty, reality, reason, freedom, sanity, peace, tolerance, or change, are most often portmanteaus we use to capture and contain the more specific issues that visibly bulge within them. Like M. Jourdain, who spoke prose all his life unwittingly, we are always treading on metaphysical ground, whether or not we acknowledge the trespass and seek overt access to its pathways and guidance around its pitfalls and

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pratfalls. We have eaten of the fruit of the tree of knowledge of good and evil, and it’s too late to spit out the seeds. When we debate practicalities, we’re making metaphysical assumptions; and when we talk metaphysics, we typically have cases in mind, pragmatic issues that puff up our tents to their familiar shapes and sizes. Questions about the soul are a case in point. They relate to times of mourning, when the bereaved seek consolation in thoughts of immortality. Or to issues of ensoulment, once critical in debates on infant baptism, but now, rhetorically, at issue in disputes about abortion. They arise again, perhaps, in discussions of the mind-body problem, freedom and determinism, animal rights, human dignity. But they don’t settle much. The disputants know how to work the language; or, when that fails, to dismiss it, with suitable derisiveness. The pragmatic issues are debated on pragmatic grounds; the metaphysical questions, pushed along by the winds of policy, with only an occasional flapping of the canvas when the odd religious tether won’t come unstuck. A more wholesome and intellectually honest policy would be to reverse the reductive trend and reinvigorate the ancient language by drawing out the pragmatic anchors and broader implications of our religiously fraught and metaphysically freighted views—to show why, for example, talk about the body does not exhaust what must be said about the human person, reinvigorating what scripture means when it says, in its concrete, pithy way, that man does not live by bread alone (Deut. 8:3). But that is just the sort of discussion Rawls would disallow. In its plainest form it is metaphysical. And, being addressed to questions of ultimate concern, it must be confessed to be religious as well, even without access to scripture and its exegesis. So a kind of anti-exegesis is privileged, dismissing any text that might seem canonical and any insight that might seem inspired, as parochial, sectarian—illicit. Yet even statement of the grounds for their dismissal is out of court. It too would count as religious discourse. God forbid that someone in a law court see a plaque or placard on the wall reminding those present of the old belief that the God of all creation once actually uttered words commanding that we bear no false witness, covet nothing belonging to a neighbor, keep our hands off his wife. Such sights might taint the proceedings. Yet even their exclusion enacts a (secularist) religious dogma. The secular too is sectarian. In Alabama, Susan Pace Hamill, a tax law professor on sabbatical at a divinity school, wrote a paper on tax policy. Published in the Alabama Law Review, it argues that Alabama, with the lowest income tax threshold of any state in the union ($4,600 for a family of four) and infant formula taxed at a higher rate than cattle feed, fails to meet biblical standards of justice.25 Alabama’s constitution skews the tax laws to favor land owners—farmers and timber interests. Professor Hamill’s article and her talks at churches

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have aroused agitation for change. The clergy in Alabama’s 8,000 churches find it hard to remain silent. One wealthy layman urges that it is not the state’s responsibility to help the poor, who already benefit from his tithe. But that argument does not travel well, and Professor Hamill’s biblical appeals seem far likelier to yield legislative impact than the arguments usually heard in legislative forums and corridors. Why, we must ask, are appeals to special interests licit, while appeals to scripture are out of order, if they urge biblically that we hold our fellows no less precious than ourselves before God? Or is the banning of God from the public square a case of false abstraction? Is the real issue just abortion—or abortion/euthanasia/gay marriage—with religious support welcomed in environmental or civil rights causes and greeted with mixed cheers and jeers when it comes to gambling or alcohol policy? Will activists quietly accept religiously motivated campaign contributions or volunteers to hold a sign on matters of ecology or civil rights, but stand embarrassed for a rule to warrant such support if its motives are not duly filtered—or unstated? Fortunately or unfortunately (there’s room for both here) religious and metaphysical concerns are inextricable from public life, a fortiori, from public policy debate. But the convention is that they enter disguised in the gray of neutral principles. In the heyday of behaviorism laws spoke to the issues of positive and negative reinforcement, just as they adopted faculty psychology in its day, or the categories of sin and guilt—as if there were no metaphysics in each such case. Under Rawls’s proposal, not just the laws but the very debates surrounding their enactment would be metaphysically neutered. But if we learn any lesson from the history of philosophy, it is that the idea of metaphysical neutrality is illusory. And if we learn anything more positive from that history it is that much is to be gleaned from a variety of metaphysical perspectives—but nothing by sweeping under the carpet all rival approaches to the big questions we face in our daily lives, and then snitching bits and pieces that we feel we need, without account of their costs in premises and implications, and without account of their dialectical limitations in confronting the complexities of experience.

3 Even a contractual theory of right and justice rests on a metaphysic of morals. For it assumes some sort of right of individuals to enter into agreements and some sort of obligation to abide by agreements once made. Those assumptions tend to become transparent in liberal theory, as though unquestionable and uncontroversial. Hence the need for communitarians to remind individualists of our social and ecological interdependence. Regrettably, they sometimes do so in terms that make the individual a mere

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creature of the group or epiphenomenon of nature, a dependent variable in a system of dependent variables that seems to leave no room at all for individuality, creativity, responsibility, or freedom. Secularity itself rests on (or evokes) a metaphysical program. Often it adopts an a priori skepticism toward long-held notions of mystery, miracles, and revelation that are sacred to much of the world’s population—even as it demands an a priori commitment to relativism about truth in general and values in particular. No values or commitments, we are asked to presume, have a stronger claim than any others. All are precious, privileged. None are to be heard. Law, then, becomes a sheer positivity, morals become subjective, and legislation floats free, to be guided only by what the pragmatists call experimentalism, but what proves in practice to be the variously articulated tactical and commercial interests of individuals, groups, corporations. For without at least a sea anchor, pragmatism itself is rudderless. Plato describes the position well when he speaks of the democratic man (Republic, VIII.558–61), whose values have become his inclinations, and whose inclinations have become the playthings of the marketplace. In our own society, the agencies and institutions of tradition and community remain alive and vocal. They speak from their own platforms, and only by invitation in the public forum. I am a child of liberalism, so this seems right to me, lest too commanding a voice impose a parochial vision or particularistic practice on us all. Yet I am not ready to silence the still small voice that seeks to awaken a larger public to the claims of conscience. That voice is needed, and the invitations that make it welcome in the public forum are necessary. For the whispering reminders that appeal to our sense of the transcendent—whether they locate it in the immemorial past, in present practice, in shared visions of the future, in texts held sacred by a community, or in a poet’s imagery—are not mere decorations to be reserved for the ritual perorations of our rhetoric. Their message is of the essence deliberatively. Liberal theory itself counts on their support. Even Rawls does, in his talk of a “background culture.” True, the liberal tradition, often for good reason, finds the very sound of such voices grating, their presence threatening, for what they call to memory or seem to promise. Fearful of any lapse into arbitrary and totalizing authority, liberalism may forget its own heritage in our civilization’s sometimes pain-wracked battles for freedom of thought and expression and come to wish (at least in some moods) that the voices it finds all too commanding were not heard at all in public. But at this point liberalism becomes illiberal and the overlapping consensus becomes exclusive rather than inclusionary. What we need to uphold from the liberal tradition is a commitment to individual rights and the principles of fairness, but also, and by the same token, the values of cultural dignity, communal autonomy, environmental integrity, and animal sensibility. Here too we need at least a sea anchor.

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Equality, for example, does not specify its own proper locus or sphere of application. It needs some adequate conception of the human person, of the value and possible meanings of human life, and our proper role in choosing and pursuing a path of life and defining for ourselves the parameters that fairly relate our choices to our immediate social surroundings and to the larger social, natural, and built environment. Equality, as the term is used in liberal discourse and political rhetoric, is a mere surrogate for the positive deserts that (most) individuals are presumed to have at heart and (for the most part rationally) to pursue. Chary about substitutions of judgment, liberals would rather speak of choice than of objective interests. But that rhetoric is built on the expectation that its audience will assume choices freely made to be wholesome, on the whole, and in the chooser’s broad interest, that equalities assiduously preserved will safeguard the good and welfare of those whose standing is protected. Arguments for dignity similarly presuppose an understanding of the boundaries of personhood and the parameters of privacy. Fairness makes sense only through an adequate understanding of group dynamics, the ecology and economy of society and civilization, and the histories from which so large a component of human identities spring—and, at times, seek to spring away. Even the most minimal umpire state cannot perform its function in creating a level playing field for adjudicating value conflicts and refereeing competitions, without some grasp of the values in play and some means of prioritizing among them. It can eschew the metaphysical only by ignoring that in so doing it waxes metaphysical. If it declares neutrality and rejects all claims to guidance of the ethos, it will follow rather than lead. It will not succeed in banning metaphysics but only in promoting the substitution of its own seemingly transparent brand of metaphysics, a thin and all too permeable membrane, through which all sorts of agendas pass, noticeably or undetected. To mention one familiar case: if social interactions devolve into a quest for cash (the most fluid, most readily hoarded and transported, most readily exchangeable of goods), the public agenda becomes the regulation of economic interests, fostering trade and industry, oversight of markets and employment. All worthy aims that can be well or badly served, but they hardly exhaust the human possibilities. Should other values—sensate values, say, or the values of honor and shame, or pietist values—come to the fore (or lurk in the backwaters), the economic state will barely notice them, let alone know how to regulate them. These categories are not thematized in its laws and institutions. The bureaucrats and theorists will only blink. Nothing in their law books authorizes, warrants, or guides engagement here. The textbooks of jurisprudence will only warn them off. The result is all too familiar. Thousands of professors of religious studies are unable, on principle, to distinguish a cult from a religion or a sect.

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The aims of mind control and techniques of manipulation that we freely use in distinguishing totalitarian states and exploitative marketing schemes are somehow out of reach. We have thousands of philosophers and media analysts who are unable, on principle, to hypothecate that sadomasochistic pornography degrades women and children, and men, and sexuality. Privacy protects the right to an abortion, but the dignity of the human body and sanctity of sexuality are not canonical in our law books or acknowledged in our codes. Maplethorpe and dung on the Virgin are protected speech acts in a publicly funded museum. Puffery for Harley-Davidson’s motorcycles, Armani’s fashions, or Saachi and Saachi’s art collection are legitimate activities of publicly supported museums. But posting the Ten Commandments in a courthouse is an unconstitutional and unconscionable violation of the establishment clause. Defense of the public ethos is left to freelancers. No wonder the ethos is vulnerable to niche marketers. Market competition ratchets down the public sensibilities to ever more sensate and edgy extremes. I’d like to propose that the public has an interest in the public ethos, and that the agency that the public entrusts with the prosecution of its interests, namely the state, has a legitimate role in the protection of that ethos. I want to urge that this function can be exercised legitimately by a liberal state. Indeed, such states, I think, cannot endure and flourish without active engagement in behalf of that interest. Judging by the ham-handedness of governmental efforts in general and the blandness that results from a confusion of openness and nonsectarianism with secularity, the state itself is hardly likely to prove the best author of such efforts, except perhaps in obvious ways—promoting the Pledge of Allegiance or banning the burning of the flag. If the World Wrestling Federation has a right to its symbols, so does the state. But substantive and extensive governmental efforts in behalf of the public ethos would probably backfire and almost certainly fall flat. Even the quest for a lowest common denominator would more likely entrench the soccer mom/little league dad outlook than foster an ethos of thoughtfulness and caring. And even caring can be perverse, when only trivial slogans and mawkish gestures are found in which to voice its concerns. Yet the state cannot afford to be neutral about values—including ultimates, that is, the values on which other values are thought to rest or at which the quest for grounding is thought to stop. So the state cannot afford to ban values—or ultimates—from the public square, or to pretend do so. We cannot ask all who come to the dance, as it were, to come naked; and it hardly makes sense to ask them to come pretending to be naked, swathed in thick body stockings that mask God knows what scars and bruises, figure faults, concealed weapons, and hidden agendas. Rather, the state has a proper interest in fostering religious thought and

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expression, and indeed, metaphysical dialogue and inquiry—and not to take a merely neutral stance among the claimants but to sustain what is life affirming and fosters human flourishing, to tolerate what does not harm the human prospect, to regulate what is unsupportive, and vigorously suppress what is destructive.

NOTES 1. John Rawls, Political Liberalism (New York: Columbia University Press, 1993). 2. John Rawls, Political Liberalism, 217. 3. John Rawls, Political Liberalism, 217–18. 4. John Rawls, Political Liberalism, 214. 5. William Galston, “Diversity, Toleration, and Deliberative Democracy: Religious Minorities and Public Schooling,” in Stephen Macedo, ed., Deliberative Politics (New York: Oxford University Press, 1999), 39–48; cf. his “Democracy and Value Pluralism,” in Social Philosophy & Policy, 17 (2000): 255–68, reprinted in Ellen Frankel Paul, Fred D. Miller, and Jeffrey Paul, eds., Democracy (Cambridge: Cambridge University Press, 2000), 255–68. 6. Rawls, Political Liberalism, 180–81n8. 7. Rawls, Political Liberalism, 12. 8. Rawls, Political Liberalism, 193. 9. Philip Hamburger, Separation of Church and State (Cambridge, Mass.: Harvard University Press, 2002). 10. Rawls, Political Liberalism, 193–200. Thus: “Beyond the requirements already described, justice as fairness does not seek to cultivate the distinctive virtues and values of the liberalisms of autonomy and individuality, or indeed of any other comprehensive doctrine” (200). 11. Rawls, Political Liberalism, 193. 12. Rawls, Political Liberalism, 199. 13. Rawls, Political Liberalism, 214. 14. Rawls, Political Liberalism, 214. 15. See L. E. Goodman, On Justice (New Haven, Conn.: Yale University Press, 1991). 16. Rawls, Political Liberalism, 217. 17. Eugene Garver, For the Sake of the Argument (Chicago: University of Chicago Press, 2003). 18. For the internal diversity, dynamism, and openness of cultures, see Michele Moody Adams, Fieldwork in Familiar Places (Cambridge, Mass.: Harvard University Press, 1997); and Lenn Goodman, In Defense of Truth (Amherst, N.Y.: Humanity Press, 2002). 19. Nicholas Wolterstorff, “The Role of Religion in Decision and Discussion of Political Issues” in Robert Audi and Nicholas Wolterstorff, Religion in the Public Square (Lanham, Md.: Roman and Littlefield, 1997), 93–95. 20. Rawlsian reasons might be urged, but they enter the consensus only by restriction of the class of rational deliberators to those who would accept them.

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21. Appeal to constitutional issues forestalled the application of our early quarantine laws to the first AIDS cases, and basic privacy rights were used to preserve the anonymity of HIV-infected prostitutes. 22. Notto Thelle reveals in Buddhism and Christianity in Japan: From Conflict to Dialogue 1854–1899 (Honolulu: University Press of Hawaii, 1987), 18–21, how decadent, corrupt, and despised Buddhism became in Japan as a result of its official establishment and co-option. It was only when Buddhism was disestablished that it was once again widely regarded seriously as a deeply spiritual religious option. 23. See Goodman, On Justice, 61–72. 24. Moses ben Maimon, Dala¯lat al-Ha¯‘ir¯ı n (Le Guide des Égarés), Arabic text edited with French translation by S. Munk, 3 vols. (Paris, 1856–1866; photomechanical reprint, Osnabrück: Zeller, 1964), 3:35. The well-known translation by Shlomo Pines (Chicago: University of Chicago Press, 1963) is keyed to the Munk edition in the running heads. For my own rendering from the Arabic, see L. E. Goodman, Rambam: Readings in the Philosophy of Moses Maimonides (New York: Viking, 1976; reissued, Los Angeles: Gee Tee Bee, 1983). My translation of the passage in question is found on pp. 426–27: “Commandments relating to penal law, as the laws on theft, robbery, and false witness—most of what I deal with in ‘the Book of Judges’ [in the Mishneh Torah]. The utility of this class of laws is manifest and clear. For if criminals are not punished, crime will not be diminished at all, and those who contemplate wrongdoing will not be deterred. There is no more fatuous fool than those who claim that the abrogation of all penalties would be a kindness to mankind. That would be the most barbarous cruelty to men as well as the ruin of civil order. The compassionate thing, in fact, is to do as He commanded: ‘Establish judges and magistrates in all your precincts’” (Deuteronomy 16:18). 25. Wall Street Journal, February 12, 2003, A-1.

2 Social Contract in Modern Jewish Thought: A Theological Critique David Novak

SOCIAL CONTRACT AND JEWISH MODERNITY The idea of a social contract has been the subject of much debate in modern political theory, from Hobbes to Rawls and their various critics.1 The social contract’s origins can be traced back to premodern thinkers, including Jews who parsed the idea in documents as early as the Bible. Nonetheless the idea’s practical significance came to the fore with the rise of the modern, secular nation-state.2 Jewish contributions to this discussion gained importance as thinkers argued for what sort of role Jews could and ought to enact as citizens in these new secular states. (By “secular” I mean a polity that does not look to any particular religious community for its fundamental authority to govern.) In this essay, I explore how the important early modern Jewish philosopher, Moses Mendelssohn (d. 1786), attempted to employ social contract thinking to imagine what role Jews could and ought to enact in the secular nation-state, which he believed lay on a proximate historical horizon. I shall then critique his view of Jewish citizenship from a theology rooted in the Bible and the Rabbinic Tradition as classically presented in the Talmud and developed by later exegetes.

JUDAISM AS A RELIGIOUS DENOMINATION Ancient Jewish thought about the covenant focused on the Sinaitic pact with God, an agreement between an absolutely superior being and his subjects, who were stipulated to obey according to His promise that they would 53

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be His people. In the seventeenth century, Baruch Spinoza, philosopher and nemesis of Jewish orthodoxy, radically redefined the covenant, turning it into a social contract. Spinoza’s reconceptualization had a profound effect on Jews who came after him, even on those who, unlike him, chose to remain with Judaism and the Jewish community.3 The most prominent of such figures in the eighteenth century was the philosopher and scriptural exegete, Moses Mendelssohn. Spinoza’s social contract was quite hypothetical, especially as it applied to the Jews, but Mendelssohn developed a theory directly applicable to the political situation of the Jews in contemporary Prussia, who were struggling to gain full citizenship in the emerging secular nation-state, a struggle that culminated only after Germany became fully united, largely under Prussian rule, in 1871.4 Mendelssohn’s great work in political theory was entitled, Jerusalem: Or on Religious Power and Judaism. This work was written both for both gentiles and Jews. To the gentiles, Mendelssohn wanted to argue that the Jews could become full citizens in the new secular nation-state because they were fully prepared to leave behind the corporate claims of the Jewish communities (qehillot) on individual Jews.5 In other words, the Jewish community would and could voluntarily give up their theological-political power (Macht). To the Jews, Mendelssohn wanted to argue that they could become full citizens of this new secular nation-state in good Jewish faith because Judaism, as he conceived it (hence “and Judaism” in the title of his book), lent itself to becoming one religious denomination among several in this (or any) secular nation-state. The best way to understand Mendelssohn’s theory of the social contract, especially as it pertains to the place of the Jews in the new secular politics of modernity, is to see how he relates three terms and their referents. These terms are: “nature,” “state,” and “religion.” Concerning nature he writes: If men are not bound by nature to any duty [Pflicht], they do not even have a duty to keep their contracts [Vertrage]. If there is in the state of nature, no binding obligation [Verbindlichkeit] other than that based on fear and powerlessness, contracts will remain valid only as long as they are supported by fear and powerlessness.6

Here Mendelssohn is explicitly arguing against Hobbes, who had asserted that humans enter a social contract with their rulers because the state of nature, which was their chaotic pre-political situation, not only afforded them no protection from criminals, but also provided them with no moral norms to prevent them from becoming criminals themselves.7 Not wanting either to be the victims of criminal violence or become violent criminals themselves, humans enter into a contractual agreement (Vorabredung) with the state to live peaceful, law-abiding lives.8

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However, a problem appears: How can one make his or her contractual commitment to enter into civil society and its polity if the place where he or she is coming from—the state of nature (Stande der Natur)—does not provide one with any moral norms?9 How can one be expected to keep his or her agreements if one has made them in a situation where there is not even the moral principle that contracts are to be kept (pacta sunt servanda)? Therefore, Mendelssohn, explicitly following Locke rather than Hobbes, insists that there is enough morality in the pre-political situation of human beings to enable them to contract a civil society and polity with the moral integrity they have already derived from nature. That is because civil society is meant to enhance already natural human sociality, not to create human sociality de novo.10 Nature, specifically human nature, makes demands on us (duties) even before we make contractual claims on the society with which we have entered into a social contract.11 In fact, because we already have these moral norms in hand, so to speak, humans are able to make moral claims on the state. Natural duties, then, precede civil rights; indeed, natural duties make civil rights possible. If, though, humans came to the state with nothing moral already in hand, then the only claims that could be made would be what the state could make on them. Therefore, the prior, natural morality humans already have in their pre-political (but not pre-social) situation is also their protection against an absolutist state, which is the type of state Hobbes argued for (he was in fact arguing for the Stuart monarchy in Britain), and which repelled those who knew how morally destructive such a state could actually be. We can now see how nature and the state are correlated, that is, how one moves from the natural human situation of pre-political sociality to the situation of the morally constituted state. That movement, which does not leave natural morality behind, is effected by the social contract. We now need to see how Mendelssohn views religion, and how Judaism fits into that overall view. What is the relation of religion to nature and to the state? Mendelssohn calls religion, which for him are the relations of humans to God, by the name “the Church” (die Kirche).12 As a professing Jew, he certainly does not mean this term to only refer to the Christian religion. Instead, he uses it in its political rather than theological sense, in the same way that even traditional Jews today have little problem speaking of “Church-State relations” when they specifically mean Judaism’s relation to the secular state. “The Church” is thus a synonym for “religion.” Nevertheless, by using the term “church,” Mendelssohn is actually altering its use both by Jews and Christians. For Jews, being a “church” within a larger secular state means that the historical Jewish community, as the repository of the Jewish tradition, can no longer make communal claims on the Jews

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who profess it. For Christians, being a “religion” (that is, a church rather than the Church) within a larger secular state means that the state can and should no longer look to any one religion, especially a still-dominant Christianity, for its legitimacy. The implication here is that the Christian Church, which until that time had claimed to be the ultimate source of political legitimacy for any state in Europe, would have to become just a religion among several others. Indeed, now all religions within the state are to be for the state rather than from the state or by the state. And the state is not to be from the church or by the church—any church. Thus the state is to be religiously neutral and religion is to be politically neutral. Now their relation is to be mutually respectful rather than hierarchal. On this point, Mendelssohn writes: “The only aid [Beystand] religion can render the state consists in teaching and consoling; that is, in imparting to the citizens, through its divine doctrines [gottliche Lehren], such convictions as are conducive to the public weal [gemeinnutzige Gessinungen].”13 It would seem that, for Mendelssohn, there is a natural religion as well as a natural morality. And, just as one is not bound to natural morality by contract, so is one not bound to natural religion by contract. Thus, after speaking of “a social contract” (gesellschaftliche Vertrag), Mendelssohn writes: Not so the church! It is founded on the relationship [Verhaltnisse] between God and man. God is not a being who needs [bedarf] our benevolence, requires our assistance, or claims any of our rights [unsern Rechten] for his own use, or whose rights can ever clash or be confused with ours. These erroneous notions must have resulted from the . . . inconvenient division of duties into those toward [gegen] God and those toward man. The parallel has been drawn too far.14

Now, for Mendelssohn, all rights and duties are correlated.15 Furthermore, he holds that rights are claims based on needs. As such, we have a duty to help our neighbor since our neighbor has a rightful claim on our help, and that is because our neighbor needs our benevolence.16 He or she confronts us with his or her need and thus obliges our dutiful response thereto. All legitimate duties are responses to the claims made through legitimate rights. The state too has needs, namely, obedience of its authority by its citizens. But since God has no needs because of his omnipotence, God cannot, need not, make any real claims on us. God does not really make any direct claims on us because he has no need to do so.17 Therefore, natural religion consists of our love of God (rather than God’s love of us), which is our free response to God’s benevolence as our creator and sustainer in nature or as our benefactor in history.18 It is not a matter of natural duty, much less a matter of contract. It is only a matter of more general acknowledgment and gratitude. From nature, we know all we have to know about God’s omnipotence and God’s selfless beneficence to humans. From history, as we shall

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soon see, Mendelssohn asserts that we learn more vivid illustrations of that omnipotence and benevolence. Our natural love of God is to lead to our benevolence to other creatures. “We ought, from love of God, to love ourselves in a rational manner, to love his creatures; just as we are bound, from a rational love of ourselves, to love our fellow men.”19 Now, certainly, Mendelssohn is not equating love of God with self-love. Rather, it seems, our love of God leads to our love of his creatures, the first of whom are ourselves. Then, we extend that self-love into love of our fellow humans. Moreover, the state is best equipped to deliver human benevolence from one to the other. Therefore, even though our love of God cannot be mandated by the state since God has no claims on the state, the citizens of the state can still be served when the state draws upon the religious motivation to neighbor love. Although the state has frequently to “compel [zwingen] actions beneficial to the public,” it is better served when it draws upon the more voluntary religious commitments of its citizens.20 So, Mendelssohn writes: And it is here that religion should come to the aid of the state, the church should become a pillar of civil felicity. It is the business of the church to convince people, in the most emphatic manner, of the truth of noble principles and convictions; to show them that duties toward men are also [auch] duties toward God . . . that serving the state is true service of God [ein wahrer Gottesdienst].21

It would seem, then, that any religion the state is to tolerate must be able to justify itself to the state by making the state an end to which that religion (or any religion) is to be a means.

RELIGIOUS PLURALISM IN A SECULAR STATE So far, though, Mendelssohn has shown only that the state need recognize some sort of natural, pre-political ur-religion. Indeed, he is convinced that “eternal religious truths” are available basically through the proper human exercise of natural reason.22 So far, then, Mendelssohn has not shown why either Judaism or Christianity is needed by such a secular state, for this state is able to resist the temptation of deifying itself due to its recognition of the natural knowledge and love of God. This state does not seem to need either Judaism or Christianity to avoid official atheism, what Hobbes meant by calling the state “this mortal god.”23 Moreover, whereas one transfers many of his or her natural rights to the state via the social contract, one cannot transfer any of his or her natural rights to know the truth about God and to love God because of it since these rights are “inalienable” (unverausserlich).24 Indeed, “the members of society [Gesellschaft] could not have

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granted [einraumen] that right to them [the church or the state] by any contract whatsoever.”25 Nevertheless, although the natural knowledge and love of God are readily available through the proper exercise of universal human reason, the historical dimension of human existence seems to require that these eternal truths be taught through various human cultures. Indeed, for Mendelssohn, the level of rationality achieved by any nation (which seems to be at a level less comprehensive than that of the state) is the sign of how culturally elevated it has become.26 And culture is transmitted through rituals and authoritative commandments that intend the eternal truths of the urreligion of nature. History becomes the “verification” (bewahrt) of these eternal truths.27 The practice of historical religions like Judaism is the active verification of these truths, that is, when this practice is motivated by proper rational intention. Mendelssohn emphasizes this when he points out that Judaism does not really make any dogmatic demands on its adherents. Indeed, Judaism (or any historical religious culture for that matter) does not have to do so, since whatever doctrines are believable anyway have already been learned by persuasion through universal reason. Actually commanding assent to such doctrines by making them dogmas would only call their truth value into question. Mendelssohn’s Jewish readers who were still practicing any religion were still practicing Traditional Judaism (Reform Judaism would not appear for almost another half-century; Conservative Judaism even later). As such, they probably would not have appreciated how undogmatic Judaism could possibly become. But Mendelssohn’s Christian readers, many of whom were already practicing decidedly untraditional forms of Christianity, could readily appreciate the subtle, Protestant, voluntaristic point Mendelssohn seems to be making here. Religion is not just a matter of free choice like natural morality, where one can either fulfill the duties it obliges or defy them. Rather, religion is a matter of free will, which is what one is persuaded—not commanded—to do.28 It is what one would command oneself because it is good in and of itself. Thus true religion gently persuades its adherents that the worship of God is good in and of itself because God’s power and God’s beneficence attract our free assent.29 The state is to tolerate religion because the state can enforce duties only on those who need them performed on their behalf. The state cannot enforce duties to God who does not need anything performed on his behalf. Therefore, the state must tolerate religion since a citizen’s relation to God is none of the state’s business. The state must leave religion alone, that is, any religious community that does not act as a state within a state (imperium in imperio) by imposing and enforcing its own duties on its own members.30 That is the reason why Mendelssohn argues that the Jewish community must give up its traditional internal discipline of excommunication (herem),

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since by exercising that right it is imposing duties upon its members that too closely resemble what is the sole governing business of the state.31 On the more positive side, the state should actually encourage religion when religion sees its main function in the world as inspiring people to serve the state and obey its laws out of inner conviction, thus giving them what Mendelssohn calls “a more exalted [erhabenere] sanction.”32 Mendelssohn had kept Judaism (and every other historical religion) out of the social contract between the state and its citizens. Religion is something that is essentially private, and it can be shown that privacy is what the polity (respublica) allows as a subtraction (privatio) from its domain— why?—because it is not of enough political importance for the polity to bother itself. That is quite different, however, from the much more Jewish argument that the secular state should not interfere with the practice of any religion because, at least as regards historical religions like Judaism and Christianity (and Islam), one’s religion is one’s prior attachment to a primary community with a transcendent warrant. If anything, one’s religion is more public than one’s citizenship, not less so. As such, a person’s religious community lies beyond the authority of the state for two reasons: one, it precedes the state in time; two, it deals with a dimension that is above the domain of merely inter-human politics. Thus a religious community like Judaism has both an ontological and a historically prior claim on its members. Accordingly, the Jewish community must learn how to support the state and to demand respect, not just tolerance, from it. From a perspective coming out of the Jewish tradition, it could be said that Mendelssohn ceded much too much to the state. Moreover, he was dealing with a state that recognized no real prior limits to its domain, only its own self-limitation in private areas like religion. There and there alone was it willing—intermittently—to stay out of the way of what individual citizens do among themselves in their own allotted time and space. Only a stronger idea of social contract could recognize rights prior to the state to be greater than subsequent entitlements from the state. Accordingly, it would be capable of better limiting the power of the state. But that idea could be more cogently argued in Locke’s England after the true establishment of a limited constitutional monarchy in 1688 than it could be argued in Mendelssohn’s Prussia of 1783 (the year of Jerusalem’s publication). So far, Mendelssohn has shown only that some sort of highly voluntary religion could function legitimately in a state he sees founded in a social contract. He still has to persuade readers why there should not simply be one official religion in such a state (as Spinoza had argued), as well as why it should not replace a historical religion like Judaism for the Jews, and even replace a more traditional Christianity for Christians. Moreover, as a traditional Jew himself, he has to persuade his Jewish readers why they should

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remain loyal to Traditional Judaism in this Prussian state, a state to which they must be prepared to give their full political allegiance in return for the rights of full citizenship. Mendelssohn’s argument against one official religion is stated as an address to the Christian majority in Prussia, the same people whom he wants to support Jewish appeals for the rights of full citizenship. Brothers! If you care for true piety, let us not feign agreement where diversity is evidently the plan and purpose of Providence. . . . For the sake of your felicity and ours, do not use your powerful authority to transform some eternal truth, without which civil felicity can exist, into a law [Gesetz], some religious opinion, which is a matter of indifference to the state, into an ordinance of the land!33

Here Mendelssohn is making a powerful argument for the civic validity of what we would call today “religious pluralism.” Yet this is only one of four possibilities for the relation of state and religion. One, the state could continue with one official religion, which in Mendelssohn’s Europe would, of course, be Christianity (and in Prussia specifically, Lutheranism). Doing so would, however, severely compromise the secular character of the state, even if minority religions were to be tolerated there (as Jews were sometimes tolerated in officially Christian polities). The state could not, then, claim to be based on a social contract between humans qua humans. Two, the state could institute its own new religion (Spinoza’s option). In that event, however, the state would have inevitably to formulate some dogmas (however minimal) of this new religion, and these dogmas would claim their validity from the fact that the state prescribed them. But we have seen that this is not the civic task of the state. The state is not in the truth business, and Mendelssohn rightly saw that religion is very much about truth.34 Three, the state could be officially atheistic. But that could lead to either a repression of the legitimate religious needs of its citizens, or to a sublimation of those needs into the state setting itself up as a deity to rival the people’s old God.35 (Twentieth-century fascism, Nazism, and communism have shown with unprecedented horror how that happens.) Fourth and finally, the state could recognize or respect the various ways its citizens deal with their religious needs, and respect all of the religions that enable humans to deal with them; that is, all religions that can make a positive contribution to public morality as the state proclaims and enforces it. This option would exclude only those religions that disturb public peace. For Mendelssohn, it seems, only this pluralistic approach prevents the state from either dictating one particular traditional religion, dictating its own invented religion, or turning civic obedience into a religion itself (which is what many saw as the intention of Hobbes’s idea of the state).

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TRADITIONAL JUDAISM CONTINUED IN THE SECULAR STATE Mendelssohn has argued for the civic need of a plurality of religions but has yet to show how religions that are voluntary associations of like-minded believers fit his definition of religion.36 He needs to argue for the place of Judaism in this civic scheme, specifically his own traditional Judaism, which happens to have been the only form of Judaism available in his lifetime. After all, Mendelssohn was a Jew fully observant of the commandments of the Torah and Jewish tradition, and he clearly expected his fellow Jews to remain as faithful to traditional Jewish practice as he had. He therefore needs to argue for the continued validity of traditional Judaism—but isn’t traditional Judaism very much a system of duties that are both taught and enforced in a highly structured communal context? No one could possibly confuse this Judaism with the liberal Protestant or Unitarian-like Deism of Mendelssohn’s gentile friends and supporters. Indeed, Mendelssohn, in what have become the best known lines in Jerusalem, asserts: “Judaism boasts of no exclusive revelation of eternal truths that are indispensable to salvation, of no revealed religion in the sense in which that term is usually understood. Revealed religion is one thing, revealed legislation [geoffenbarte Gesetzgebung], another.”37 Nothing remotely like the religion of law that Mendelssohn here asserts could be confused with the type of voluntary, individualistic religion for which he seems to have been arguing earlier. Any perceptive reader of Jerusalem would have to ask the following question: Isn’t “legislation” law-giving (its literal meaning in German), and doesn’t a system of law present duties to those under its authority?38 Yet, as we have seen, Mendelssohn recognizes duties only between humans, some of which are enforced by the state in its legislation and adjudicated by the state’s courts when disputes arise about how that legislation is to be applied. Even if the specific duties Judaism presents to its adherents do not conflict with the specific duties enforced or invented by the state, doesn’t the very claim of the traditional Jewish community, as a lawful society, to impose duties on its adherents—who are also citizens of the state—in principle conflict with their duties of citizenship? Isn’t the traditional Jewish community, even without the police power it had enjoyed under the ancient regime when it was a separate corporate entity, in political conflict with a state that claims to be the sole enforcer and adjudicator of duty? One could simply leave these questions unanswered and conclude that Mendelssohn has made a cogent argument for why the secular state should tolerate a plurality of religions, especially Judaism, which theretofore had been the least tolerated religion in Europe. But one could also conclude, based on the premises of his theological-political theory, that he has not yet made a cogent argument for why Jews should remain faithful to the traditional commandments as taught and enforced in the

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traditional Jewish community.39 He has not accounted for the fundamentally communal context in which all of these commandments are to be kept. And, even if Mendelssohn could show that Jewish communal order did not end with the loss of Jewish national sovereignty, as Spinoza had argued, he does not seem to be able to tell us why that communal order ought to be continued by Jews who have become citizens of a modern secular nation-state. Furthermore, if that is the case, then Mendelssohn has provided no way for Jews who live in such states to make their communal claims on the state, the first of which is that their membership in their religious community takes priority over their citizenship in the state. That means the state is not entitled to determine the actions that define one’s life, like marriage, parenting, worship, and preparation for death. Hasn’t Mendelssohn confused religion with philosophy, since he seems to want to reduce religion, which is originally so communal, into an individual, philosophical preference like being a Platonist or an Aristotelian? Isn’t it the communal character of a religion like Judaism a necessary condition for Judaism to be a system of commandments? Isn’t Judaism the religion of communal praxis par excellence? As we shall see presently, despite Mendelssohn’s philosophical acumen, great Jewish learning, and undoubted loyalty to Judaism and the Jewish people, his argument for the continuity of Judaism as a moral imperative is quite convoluted, which suggests how difficult it was for him to argue straightforwardly to Jews about Jewish loyalty as opposed to making the case for Jewish enfranchisement to the gentiles. But let us now see how Mendelssohn’s argument might be reconstructed, even if in the end it is not true. Judaism can be conceived as a system of duties, but those duties are to be distinguished from the political duties required by the state. Mendelssohn is explicit that “to every right, therefore, there corresponds [entspricht] a duty.”40 But, in his view, one has to understand the covenantal claims of God in the Torah to be essentially different from the rights exercised by the state in its law-giving. Thus one could say that the rights of the state on its citizens, which they have accepted in the social contract, are “perfect rights” which, according to Mendelssohn, pertain when “all the conditions under which the predicate belong to the subject are invested in the holder of the right.”41 That declaration means that the holder of this kind of right has a full claim on those under its authority, and those to whom this right is addressed are duty bound to respond to it without deciding whether they want to take such a right upon themselves or how much of it they want to take upon themselves. This set of normative relations comprises “compulsory rights and compulsory duties [Zwangpflichten].”42 The free, yet unconditional, acceptance of the social contract by the citizens of the state binds them to its authority without question. Hopefully, that authority is

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truly concerned with the common good of all the citizens, not just its own perpetuation and expansion. This is the relation of the state and its citizens: the state needs to command its citizens and the citizens need to obey the state’s commands, both acting for the sake of the common good. As distinct from natural morality, which is internal, these public rights-and-duties are “external,” that is, they are enforceable by the state’s police power.43 Nevertheless, Mendelssohn notes: “Blessed [Heil] be the state which succeeds in governing the nation by education itself; that is, by infusing it with such morals and convictions [Gesinnungen] as will of themselves tend to produce actions conducive to the common weal [gemeinnutzigen], and need not be constantly urged on by the spur [Sporn] of the law.”44 In other words, the chief service of religion and of general culture (which in Mendelssohn’s time were so closely connected) in and for the secular state is to enable the people to internalize their civic duties as much as possible, thus diminishing the need for too much police action. Too much overt expression of state authority inevitably suggests that the people are prisoners in their own society rather than the free persons who have created the society by freely coming together in a social contract. But there are also “imperfect” rights and their corresponding duties. These duties are not compulsory but, rather, “duties of conscience” (Gewissenpflichten), which means they are more voluntary than perfect duties are.45 Unlike those who are “impelled” (getrieben) by the state to perform actions, those who are only “induced” (veranlasset) to perform imperfect duties by religion have the option at least to decide just how they want to fulfill their duty.46 But that choice, of course, means that, contrary to perfect duties, these duties are not responses to perfect rights. Accordingly, God does not command the way the state commands. Unlike the state, it would seem that God merely offers his commands as requests (Bitten), to which human conscience can determine how it wants to comply therewith.47 For Mendelssohn, God does not command like the state because, unlike the state, God has no needs.48 Being already perfect, God has no need to exercise perfect rights at all. As such, “Omission of compulsory duties is an offense, an injustice; omission of duties of conscience, however, is merely unfairness [Unbilligkeit].”49 Furthermore, unlike Spinoza, Mendelssohn does not deem the covenant between God and Israel as being a social contract. The social contract can only be made by persons who come to it with their natural rights. But rights presuppose needs. God’s being beyond all need puts him beyond all rights and thus beyond all contracts made for the sake of the enhancement of rights. The people have a need for political well-being, but, it would seem, the state soon became capable of satisfying this need. As for needs of humans not satisfied by the state, Mendelssohn would probably argue that they are satisfied by God as the author of nature rather than by any

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covenantal agreement between God and humans. Yet he characterizes the covenant as follows: Laws, precepts, commandments and rules of life, which were to be peculiar [eigen] to this nation and through the observance of which it should arrive at national felicity as well as personal felicity [Gluckseligkeit] for each of its individual members [Glied]. The lawgiver was God, that is to say, God not in his relation as Creator and Preserver of the universe, but God as Patron and Friend by covenant [Bundesfreund] of their ancestors, as Liberator . . . they were imposed [auferlegt] upon the nation and all their descendants as an unalterable duty and obligation [Schuldigkeit].50

However, doesn’t Mendelssohn seem to be placing obedience to God on a stronger normative plane than that of the imperfect duties of conscience, about which he says: “The concept of duties toward God [is] a mere half truth”?51 But doesn’t the covenant seem to be even more compulsory than the social contract? He has an answer to that objection, and his answer is historical. Mendelssohn argues that when the covenant, what he calls “the original constitution” (ursprunglichen Verfassung), was instituted at Sinai, “state and religion were not conjoined, but one, not connected, but identical. Man’s relation to society and his relation to God coincided and could never come into conflict.”52 As such, there was not “the least division or plurality in either the political or the metaphysical sense . . . everything down to the least was part of the divine service.”53 At this level, the divinely governed state did not have to exercise any perfect rights inasmuch as God, “this monarch,” does not “have any needs. He demands nothing from the nation but what serves its own welfare and what advances the felicity of the state. . . . The community [Gemeine] was a community of God.”54 Nevertheless, this happy state of affairs soon began to break down. [T]he Mosaic constitution did not persist long in its erstwhile purity. . . . [T]he edifice developed a fissure which widened more and more until the parts broke asunder completely. The nation asked for a visible king as its ruler, a king of flesh and blood, perhaps because the priesthood had already begun to abuse the authority which it had among the people, or perhaps because the splendor of a neighboring royal household dazzled the eyes. . . . Now the constitution was undermined, the unity of interests abolished. State and religion were no longer the same, and a collision of duties was no longer impossible.55

At this point, Mendelssohn is dealing with the need of the Jewish people for secular authority early in their history. Being the traditional scholar (talmid hakham) he surely was, Mendelssohn was no doubt familiar with the major biblical, Talmudic, and medieval sources of the idea of covenant,

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all of which treat the covenant as an interminable, unconditional relationship between God and his people. Furthermore, he was answering Spinoza’s charge that when the people had to transfer their political allegiance to a foreign monarch, they thereby lost their covenantal status altogether. Why? Because the theological and the political either function in tandem or they dissolve altogether. In one sentence, here is his answer to Spinoza: “The state was under foreign dominion [Botmassigkeit], and received its orders from foreign gods, as it were, while the native [einheimische] religion still survived, retaining a part of its influence on civil life.”56 The Jews had endured this theological-political situation since at least the days of the Roman Empire. Unlike Spinoza, though, Mendelssohn regards this theological-political dualism not as a weakness but, rather, a strength. Of course, it does make for a divided way of life, yet bearing the inevitable tension enables one not to be taken in by the illusion of cultural isolation offered by religious obscurantists or the illusion of the merger of state and religion offered by the assimilationists. Hence Mendelssohn advises his Jewish (and, by implication, Christian) contemporaries: “Adapt yourselves to the morals [Sitten] and the constitution [Verfassung] of the land to which you have been removed, but hold fast to the religion of your fathers. Bear both burdens as well as you can.”57 Spinoza, the secular assimilationist, seems to have been much more hopeful of the secular state’s ability to provide a unified way of life for its citizens than was Mendelssohn. But Mendelssohn’s expectations seem to have been more sober. Indeed, history has shown him to have been more prescient. Whereas Spinoza had assumed that the Jewish community could not function authoritatively without full national sovereignty, Mendelssohn thought that it could not function authoritatively without the police power it had possessed in premodern societies. That situation had to change once Jews, as individuals, became citizens of a new secular nation-state. Mendelssohn differed from Spinoza in thinking that Judaism could still make cogent claims on individual Jews as a religion in the modern sense of the term, that is, as a non-authoritative voluntary commitment made by humans to God. But it is not from God as in revelation. Mendelssohn pins those claims on loyalty to the law-abiding Jewish past, which has always been loyalty to God-given law (torah min ha-shamayim).

MENDELSSOHN’S PROBLEMATIC LEGACY FOR JUDAISM The great problem with Mendelssohn’s formulation of social contract theory for Jews is that it does not give the covenant primacy either theologically or politically. As such, from a perspective rooted in the Jewish tradition, Mendelssohn’s theory is inadequate. It is also philosophically flawed.

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Indeed, both the theory itself and the dubious forms of Jewish identity it seems to have inspired are inadequate to Judaism and flawed in their own reasoning. Mendelssohn, well meaning to be sure, nonetheless did not prepare Jewish political theology well enough for the challenges that have come from Jewish participation in secular nation-states, especially for Jewish participation in modern constitutional democracies. The results of this have been quite bad for the development of a stronger Jewish social contract theory. First, the theory itself. Even by his own conceptualizations of rights, duties, and social contracts, Mendelssohn has misinterpreted the covenant. When it comes to rights, it can cogently be said even by his own conceptualizing that God does have perfect rights, for he is wrong in assuming God has no needs (Bedurfnisse).58 For Mendelssohn, all needs are due to a lack in the one who needs, hence ascribing needs to God would presume that God is less than perfect, that God has some need or other that needs to be filled by what is not God—which means that what God needs is prior to God in the same way that the woman I need to marry has already to exist in order for me to need her. Thus a God who has primordial needs does not absolutely transcend what is not God: the world. To ascribe need to God is to radically compromise divine perfection. Nevertheless, this position assumes that all needs are prior to their subject and none are subsequent to him or her. But it is only the needs of creatures that are prior. That is, we are needy by nature. We do not invent our needs. We can only discover our needs, express them in desire, then learn whom that desire intends. Only thereafter can we intelligently choose how we shall direct that needy desire, and finally hope that our desire shall be truly fulfilled. But scripture quotes God saying: “My plans [mahshavotai] are not your plans; my ways are not your ways . . . as the heavens are higher than the earth, so are my ways higher than your ways and so are my plans are higher than your plans” (Isaiah 55:8–9, author’s translation).59 Based on the evidence of scripture, it is incorrect to say that God created the world, or that God created Israel by electing her in the covenant, because of some prior need. Nevertheless, one can still say that once God has created the world, God subsequently wills a need for the conscious and freely chosen cooperation of human creatures in the covenantal realization of creation. There is no necessity in God’s need, yet God is still concerned for his creation, which is expressed through his covenantal desire to be with his elected partner Israel (am segulah) whom God “desires” (hashaq) in order to “keep the covenant” (Deuteronomy 7:7, 9).60 God elects Israel to need her for the sake of their mutual relationship. Unlike human needs, God’s result from God’s willing to be concerned and designating what he needs in order to substantiate that concern. God’s needs are projected into the world; they do not intend a world already there before him. Conversely,

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we human creatures have no choice about our needs, which precede our will. Our concern with what is not us is inescapable. Our needs define us.61 Our only choices concern how to fulfill our needs and to order them when they conflict with one another. But we do not have the freedom not to need anyone at all, because we did not create others; rather, we have been planted in their midst. In our human situation in the world, our needs are expressed in our desires. Our desire then requires knowledge to ascertain whether what we need is real or is only a phantom. If real, then our desire can be attained; if a phantom, though, our desire is an existential waste. Indeed, that is the case when human think they can create a real other rather than be discovered by others and then discover them. Only after desire has been linked to knowledge can we intelligently choose the means to the end: the fulfillment of our desire.62 Conversely, God’s will leads to God’s knowledge of what he has created. Then God’s concern for those he has created expresses itself in his needy desire for the response of his covenanted partners whom he has elected.63 (As for hope, since God alone knows the end of cosmic history, God has no need for hope; only we need God to be the ultimate end of our hope.64) Rooted in a scripturally based theology, we can now say that God has needs, and that these needs are covenantal (tsorkhei gavoah).65 If so, then God has perfect rights by Mendelssohn’s own definition of perfect rights. And, since all rights have correlative duties, the perfect covenantal rights of God fully intend the perfect covenantal duties of Israel, God’s junior partner in the covenant. These perfect covenantal duties are much stronger than Mendelssohn’s “duties of conscience,” with their highly voluntaristic implications. The covenantal rights, which these perfect duties presuppose, are expressed in the commandments (mitsvot) of the Torah, which are the perpetual claims God makes upon his people. God’s claims upon his people are twofold: they are awesome claims and benevolent claims. In God’s awesome claims, God expresses his need to rule over his people as their sovereign. To this type of claim, the people are to respond awesomely, with fear (yir’ah). This fear is not so much fear of what God will do to them if they disobey him as it is fear of the commanding presence of God who is so overwhelming. On the other hand, in God’s benevolent claims, God shows the people how he has enabled them to fulfill their need for God to be their true benefactor. To this type of claim, the people are to respond accordingly, with love (ahavah). It is not so much love of what God will do for them as it is love of what God does for them now by actively including them in the covenant. Furthermore, some have seen the observance of the negative commandments (“thou shalt nots”) to be motivated by the restraining fear of God, whereas the practice of the positive commandments is motivated by the effusive love of God.66 This

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dialectic of the fear of God (yir’at ha-shem) and the love of God (ahavat hashem) is one of the great recurring themes of Jewish theology throughout the ages. This comes out in the opening words of the Decalogue: “I am the Lord your God who brought you out of the land of Egypt, out of the house of slavery” (Exodus 20:2; Deuteronomy 5:6). It is a statement that calls for both awe and love on the part of Israel (the “you” here). Israel is always to be awesomely mindful of the God whose power overcame Pharaoh, the world’s most powerful ruler (hence the designation of God as “awful” in older English).67 Israel is also to be lovingly mindful of God’s beneficence for them, shown constantly in the giving of the Torah, the very purpose for which God took them out from Egyptian slavery—and by extension, liberation from slavery to any other creature, no matter how powerful.68 Furthermore, this is more than simply gratitude for past favors. Yet, for Mendelssohn, it would seem, the keeping of the commandments of the Torah is a matter of gratitude for what God did as “Patron and Friend by covenant of their ancestors [Vorfahren].”69 Unlike the rabbis, who constantly emphasize how God is the lawgiver, Mendelssohn states that “[t]he lawgiver was God [die Gesetzgeber war Gott],” and that “[t]hese laws were revealed [wurden geoffenbart].”70 The use of the past tense here is certainly not careless on the part of so careful a writer. Moreover, as we shall soon see, gratitude for the past can quickly degenerate into a merely nostalgic Judaism. Not only are God’s rights perfect rights, they are more perfect rights than those exercised by the state. Unlike the state’s rights, those of God are not mediated by any contract with those to whom they are addressed: Israel in the covenant. Unlike contracted rights, God’s covenantal claims are unconditional. Instead, God’s covenantal rights are akin to the natural obligations (Verbindlichkeit) which the social contract itself presupposes.71 The social contract is “a compact [Pactum] into which [one] has voluntarily [gutwillig] entered.”72 But the natural obligations that the social contract presupposes are not voluntary, that is, they are not dependent on even the voluntary acceptance of them in general by the people, let alone on the specific acceptance of any of them or all of them one by one together.73 And it is only those under such natural obligation who, for Mendelssohn, would be in any position to make a cogent commitment to a social contract. Mendelssohn’s underestimation of the political priority of the covenant stems from a mistake in his general theory of the social contract, especially as he applies it to his understanding of Judaism. He assumes, largely following Locke, that one goes from the state of nature to civil society. One’s basic social rights and duties are already known in the state of nature, but one needs civil society for their fulfillment.74 One moves from the state of nature to civil society via the social contract. But, for a prominent strand of the Jewish tradition, one actually goes from the state of nature—that is, the

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state of natural sociality—via God’s election of Israel into the covenanted community and its concrete life mandated by the Torah. The structure and content of natural, pre-Sinaitic, sociality is the morality of what the rabbis call “Noahide law,” that is, the essential prohibitions of idolatry, murder, incest, robbery, and the like.75 It is necessary for human community, but not sufficient for its deep cultural existence. That cultural depth comes from the Mosaic Torah and the tradition it continually spawns. Earlier natural sociality is presupposed by this Torah and its tradition and it is not overcome by the new special revelation at Sinai. Instead, that pre-Sinaitic morality functions as a regulator of unethical excesses that might emerge in the interpretation of the revealed commandments.76 And it is a general guide for its new legislation in the absence of a specific source for dealing with unprecedented ethical problems.77 It is only after the Jewish people have been sufficiently socialized within the covenantal community, which is vitally concerned with human origins prior to nature and human destiny beyond the natural world, that Jews can participate in a social contract, either among themselves or with nonJews, in good faith. Natural morality per se is an abstraction, since no one actually lives under it in this world. Everyone who is law-abiding is really living under some sort of positive law. Natural moral law only informs and guides these systems of positive law, even Jewish law, which presents itself as rooted in divine revelation. Natural morality does not itself, however, constitute any real community in the world. As such, it cannot provide real communal priority for those living under the rule of any human regime. And, as such, it cannot really limit the extension of state power, which is the greatest power humans have ever devised for themselves. Natural morality can only suggest certain internal restraints within the powerful existence of the state itself. Only a real historical covenant, concretely affirming its past, present, and future, provides its members sufficient wherewithal to participate in a social contract without being totally enveloped by the state that any social contract has created. Any Jew who has not been fully socialized in the covenant enters a social contract—even with his or her fellow Jews—naked and very vulnerable to whatever use or disuse those in political power hold in store for one. Therefore, contrary to Mendelssohn’s convoluted notion of the covenant, only a covenantal life that sufficiently intends its present and future as well as just its past, only this kind of life is both adequate to the evidence of scripture and Jewish tradition and sufficient to enable Jews honestly to participate in and benefit from any social contract. Without such a life, though, any Jew—even a Jew as learned and observant as Moses Mendelssohn—is not yet ready for an active rather than a passive existence in a modern secular society, even one that pays serious attention to the idea of the social contract in its political self-understanding.

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Not only is Mendelssohn’s theory of Judaism inadequate to the Jewish tradition by making it subordinate to a non-Jewish universe, it is also an insufficient basis for the traditional Jewish practice that Mendelssohn himself lived within that essentially non-Jewish universe.78 Subsequent Jewish history, especially in Germany (and I mean nineteenth-century Germany, long before the Holocaust), indicated how myopic Mendelssohn’s vision of the Jewish future really was. As we have seen, Mendelssohn has a general view of natural religion, which is a universal awareness of God that transcends any particular historical tradition. For him, all historical religions are attempts to “command actions only as tokens [Zeichen] of convictions,” thus all their “laws refer to, or are based upon eternal truths of reason, or remind us of them, and rouse us to ponder [Nachdenken] them.”79 As a historical religion, Judaism is basically an ancient, not a modern, religion. It is “piety” in the original sense of the Latin pietas, namely, loyalty to one’s ancestors. It looks backward, not forward.80 In Mendelssohn’s time, loyalty to ancestral Judaism could be expressed only in traditional, halakhic Judaism, since that was the only Judaism available to be practiced. But, soon after Mendelssohn’s death, Liberal Judaism, first Reform Judaism and then Conservative Judaism, appeared, offering modern Jews religious alternatives to the strictly halakhic Judaism of the past. As such, modern Jews could still remain—or think they remained—loyal to the Jewish tradition, but without having to be under its normative yoke either in their practice or faith. Reform Judaism in its early stage, when it was heavily influenced by notions of historical progress, emphasized the universalism of natural theology as something toward which Judaism was striving. But, because of Kant’s seeming destruction of the metaphysics that concentrated natural theology on the creativity of God in the larger world, Reform Jewish thinkers emphasized God being the source of the moral law developed by rationally autonomous human nature.81 Moral law is, by Kantian definition, that which is universalizable.82 In fact, in post-Kantian Jewish-Christian polemics of the nineteenth and early twentieth centuries, some bolder Jewish thinkers argued that, contrary to prevailing Christian (especially Protestant) antiJewish prejudice, Jewish morality was more universalizable than Christian morality.83 As such, they implied that Judaism, not Christianity, would better serve the religious purposes of the enlightened citizens of a secular nation-state like Germany. Following this kind of strident universalism, Reform Judaism took a highly eclectic stance as regards the particular religious practices and doctrines of the Jewish tradition. In fact, it was often hard pressed to offer any cogent retort to the Ethical Culture movement, founded by a former Reform rabbi, Felix Adler (d. 1933), which asserted that a truly universalizable ethics needed no religion at all, certainly not Judaism.84 But even when it could still argue for some Jewish specificity, Reform Ju-

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daism, by its very endurance, applied Ockham’s razor to Mendelssohn’s theological assumptions. That is, it showed that Mendelssohn required the acceptance, both in theory and in practice, of more premises than are necessary for the survival of a recognizably Jewish religion. Judaism, for the subsequent reformers, could survive much more minimally. Until very recently, Conservative Judaism seemed to be a marriage of convenience between moderate Reform Jews who wanted to preserve more of the Jewish tradition than did most other Reform Jews, and moderate Orthodox Jews who wanted less cultural isolation than many Orthodox Jews did. By generally avoiding the hard doctrinal questions of the truth of revelation and the authority of halakhah, Conservative Judaism, in the middle of the twentieth century anyway, was able to function much as did American political parties at that time. Conservative Judaism functioned on the most politically pragmatic level possible, bringing together disparate elements in a loose coalition. (All that changed by the last third or so of the twentieth century when American Conservative Judaism adopted an egalitarian ideology indistinguishable from that of Reform.) When Conservative Judaism at that earlier time did have to say something about what it affirmed, it adopted a slogan like “tradition and change,” which could never propose any consistent criterion for determining when tradition was to be maintained and when it was to change.85 Of course, this showed only that Conservative Jews had no coherent affirmation of the governing authority of halakhah as Normative Judaism. Even more basic than that, the general Conservative avoidance of the question of the verbal revelation of the Torah removed any theological challenges to this basically laissez-faire Judaism. Whereas early Reform Judaism bought into Mendelssohn’s more universal notion of religion per se, Conservative Judaism until quite recently bought into his more antiquarian notion of Judaism. Judaism is an appreciation of the Jewish past—that is, as long as it doesn’t inhibit whatever a group of Jews think is their successful entry into the future. Along these lines, Conservative Jewish thinkers liked to speak of “our tradition,” forgetting of course that tradition is a traditio, a handing down and ongoing explication of concrete revelation of the God who says “no” as absolutely as he says “yes.”86 Jews’ recent general disillusionment with liberal universalism, primarily because of its seeming inability to prevent the Holocaust and its growing support for politically isolating the State of Israel as a Jewish state, has given the antiquarian side of Mendelssohn’s Judaism new influence on nonOrthodox Jews. To be sure, though, his view of Judaism has been mediated by many intervening uses, since very few contemporary Jews, even when well educated Jewishly, have read Mendelssohn first hand. Furthermore, without the balance of his natural theology or something logically akin to

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it, this type of antiquarian Judaism degenerates into nostalgia, even kitsch. Mendelssohn’s theology is not Jewishly strong enough to get contemporary Jews out of either assimilationism as a likely historical result of unchecked universalism or mere ethnicity as a likely historical result of unchecked antiquarianism. But, to be fair, Mendelssohn’s philosophical theology is intellectually cogent enough not to be immediately blamed for the excesses that it has influenced. They would most likely have happened even without him altogether. Whereas the insights and theories of classical Judaism can be retrieved for the formulation of a contemporary Jewish social contract theory—which is how Jews can intelligently enter a social contract with non-Jews (and perhaps among themselves too) in good faith—alas, such is not the case with Mendelssohn. But Mendelssohn deserves attention nevertheless because of his great influence (even if it has been frequently mediated) on the way modern Jews have religiously negotiated modernity, especially their participation in the modern secular state. Mendelssohn is the first unambivalently Jewish thinker in modernity to deal with the idea of the social contract, and then apply it to his understanding of Jews and Judaism. For that reason alone, he deserves far more attention than what might be given to later Jewish thinkers who thought along his lines, but with far less philosophical gravitas. As the rabbis put it so nicely: “To the words of the master or the words of the disciple, to whose words do we listen?”87 All that having been said, however, Jews need to overcome Mendelssohn rather than retrieve him. He simply does not give them enough wherewithal to enter a social contract and still return home to Jewish community (understood in the deepest ontological sense) fully intact. Mendelssohn’s universalism did not enable Jews to have enough Judaism left after entering the social contract to be able to transcend mundane politics. That could be done only by an understanding of what membership in a deeper covenantal community, with its more, very different, past, present, and future, means. And Mendelssohn’s antiquarianism, by virtue of its being constituted as an exception to the universal political order, did not enable Judaism to be an active participant in the political order rather than being a case of special, sectarian pleading from the political order. Judaism needs more than the tolerance of the secular state. A fully cogent commitment to the covenant, both theologically and politically, alone enables Jews to be active participants in a social contract rather than passive recipients of either the secular state’s totalizing enclosure or its patronizing disinterest. Yet one cannot retrieve that Jewish political tradition without carefully working one’s way through Mendelssohn’s philosophy (and, by the by, Spinoza’s, whose assumptions profoundly infiltrated modern Jewish thought).88 At the end of the day, Mendelssohn is a much better Enlightenment philosopher than he is a Jewish theologian. But that shows that one cannot simply develop

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a philosophy outside of Judaism and then use it adequately either to explain Judaism theoretically or propose practical solutions to current Jewish political problems, certainly in the Diaspora.89 But, in order to overcome Mendelssohn and his influence, one must first understand him fairly.

NOTES 1. The by now indispensable contemporary argument for a social contract is found in John Rawls, A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971). It is the most widely and deeply debated book in political theory in the past fifty years. For a recent argument against the whole idea of a social contract, including but not limited to Rawls’s version of it, see Russell Hardin, Liberalism, Constitutionalism, and Democracy (New York: Oxford University Press, 2003). 2. For earlier ideas of a social contract, see Plato, Crito, 50A–51E; Republic, 357A–367E. 3. See David Novak, The Election of Israel: The Idea of a Chosen People (Cambridge: Cambridge University Press, 1995), 22–29; also, “Spinoza and the Doctrine of the Election of Israel,” Studia Spinozana, 13, ed. S. Nadler, M. Walther, E. Yakira (Wurzburg, Germany: Konnighausen und Neumann, 2002), 81–98. 4. See Alexander Altmann, Moses Mendelssohn: A Biographical Study (Tuscaloosa: University of Alabama Press, 1973), 421–74. 5. For insightful discussion of this radical change in the corporate status of the Jews, see Jacob Katz, Tradition and Crisis: Jewish Society at the End of the Middle Ages (New York: Schocken, 1971). 6. Moses Mendelssohn, Jerusalem: Or on Religious Power and Judaism, trans. A. Arkush (Hanover, N.H.: University Press of New England, 1983), 36–37. The German text (hereafter “German”) is taken from Moses Mendelssohns Gesammelte Schriften: Jubilaumausgabe 8, ed. A. Altmann (Stuttgart, Germany: Friedrich Fromann, 1983), 106. 7. In his commentary on Arkush’s translation of Jerusalem, on pp. 156–57, Alexander Altmann shows that Mendelssohn oversimplified Hobbes’s actual position. 8. Jerusalem, 37  German, 106. 9. The term “state of nature” is an English translation of the Latin status naturalis. Although accurate, it is nonetheless confusing, since “state” could easily be confused with “state” as used for a polity (civitas) as in der Staat. Hence the German der Stande der Natur, used by Mendelssohn, meaning “the natural condition,” is much less confusing. 10. See John Locke, Second Treatise of Civil Government, chap. 2. 11. Jerusalem, 37–38. See J. W. Gough, The Social Contract, 2nd ed. (Oxford: Clarendon Press, 1957), 193–203. 12. See Jerusalem, 41  German, 111. 13. Jerusalem, 45  German, 114. Mendelssohn’s German rendition of the Latin bonum commune is das gemeine Beste (ibid.). 14. Jerusalem, 57  German, 126. Hence dessen Rechten (ibid.), when referring to God, must be taken figuratively not literally.

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15. Jerusalem, 46. 16. Jerusalem, 47. 17. Jerusalem, 58–59. 18. Jerusalem, 58. 19. Jerusalem, 58. 20. Jerusalem, 72  German, 140. 21. Jerusalem, 43  German, 112. 22. Jerusalem, 89–90. 23. Leviathan, chap. 17, ed. Michael Oakeshott (New York: Collier Books, 1962), 132. 24. Jerusalem, 70  German, 138. 25. Jerusalem, 62  German, 130. 26. Jerusalem, 42–43. 27. Jerusalem, 98  German, 165. 28. Jerusalem, 43. 29. Jerusalem, 118–19. 30. Jerusalem, 77–80. 31. Jerusalem, 72–74. 32. Jerusalem, 58  German, 127. 33. Jerusalem, 138  German, 203. 34. Jerusalem, 90. 35. Mendelssohn wanted very much to steer a middle course between atheism and “fanaticism.” See Jerusalem, 63, 136. 36. Jerusalem, 135–36. 37. Jerusalem, 97  German, 164. 38. For Mendelssohn, religious authority in essence is only exemplary of the morality religion is supposed to help the state teach its citizens. See Jerusalem, 43. 39. See Jerusalem, 128 ‘ German, 194, where Mendelssohn calls the covenanted community a Gemeine (in later German, Gemeinde or “congregation”), which is distinct from the state which he calls a Gesellschaft (see Jerusalem, 57  German, 126). The difference between the two forms of society is that membership in a Gesellschaft is by voluntary contract; membership in a Gemeinde is by involuntary election: by birth for native born Jews; by being accepted into the community for converts to Judaism. 40. Jerusalem, 46  German, 115. 41. Jerusalem. This distinction was most famously developed by Kant, who was Mendelssohn’s contemporary and who was familiar with Mendelssohn’s work. See Kant’s Religion Within the Limits of Reason Alone, trans. T. M. Greene and H. H. Hudson (New York: Harper and Bros., 1960), 90–100. Re Mendelssohn explicitly, see Jerusalem, 154, note thereon. 42. Jerusalem, 47  German, 115. 43. Jerusalem, 47  German, 115. 44. Jerusalem, 41  German, 110–11. 45. Jerusalem, 47  German, 115. 46. Jerusalem, 119  German, 184. 47. Jerusalem, 47  German, 115. 48. Jerusalem, 57. 49. Jerusalem, 47  German, 15.

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50. Jerusalem, 127  German, 192–93. 51. Jerusalem, 123. 52. Jerusalem, 128  German, 193. 53. Jerusalem, 128  German, 193. 54. Jerusalem, 128  German, 193. 55. Jerusalem, 132. 56. Jerusalem, 133  German, 197. 57. Jerusalem, 133  German, 198. 58. Jerusalem, 128  German, 194. 59. The Hebrew mahshavah is usually translated as “thought.” However, it does not mean “thought as contemplation,” which is rendered in biblical Hebrew as higayon (see e.g., Ps. 19:15) but, rather, as “deliberation,” i.e., planning/willing to do something (e.g., Exod. 31:5). It is practical, not theoretical, reason. It would seem that even God, as creator, engages in practical reasoning, since we can only imagine him thinking about what to make or how to respond to what he has made. See David Novak, Natural Law in Judaism (Cambridge, Mass.: Cambridge University Press, 1998), 113–20. 60. See Exod. 19:5–6. 61. See Novak, Natural Law in Judaism, 172–73. 62. See Aristotle, Nicomachean Ethics, 3.3–4/1112a20–1113a24. 63. See David Novak, Covenantal Rights: A Study in Jewish Political Theory (Princeton, N.J.: Princeton University Press, 2000), 62–63. 64. See Jer. 37:16; B. Berakhot 34b re Isa.64:3. 65. See Nahmanides, Commentary on the Torah: Exod. 30:46. 66. See Palestinian Talmud: Berakhot 9.5/14b; Nahmanides, Commentary on the Torah: Exod. 20:8. 67. See Mekhilta: Yitro re Deut. 7:8, ed. Horovitz-Rabin, 222. 68. See Mekhilta, 219. 69. Jerusalem, 127  German, 193. 70. Jerusalem. Cf. Sifre: Devarim, no. 33 re: Deut. 6:6, ed. Finkelstein, 59; B. Berakhot 63b re: Deut. 27:9. 71. Jerusalem, 36  German, 106. 72. Jerusalem, 37  German, 106. 73. Jerusalem, 48–49. 74. Jerusalem, 56. 75. See Babylonian Talmud: Sanhedrin 56a–b; also, David Novak, The Image of the Non-Jew in Judaism: An Historical and Constructive Study of the Noahide Laws (New York and Toronto: Edwin Mellen Press, 1983). 76. See Aharon Lichtenstein, “Does Jewish Tradition Recognize An Ethic Independent of Halakha?,” Modern Jewish Ethics, ed. M. Fox (Columbus: Ohio State University Press, 1975), 62–67. 77. See Novak, Natural Law in Judaism, 68–69. 78. See Shmuel Trigano, La demeure oubliee, rev. ed. (Paris: Gallimard, 1994), 287–306. 79. Jerusalem, 73, 99  German, 140, 166. 80. For a more modern presentation of this kind of pietas (but minus even Mendelssohn’s rather subdued theology), see Leo Strauss, “Why We Remain Jews?” in

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the collection of his essays entitled Jewish Philosophy and the Crisis of Modernity: Essays and Lectures in Modern Jewish thought, ed. K. H. Green (Albany, N.Y.: State University of New York Press, 1997), 311–29. 81. See Leo Baeck, The Essence of Judaism, trans. V. Grubenwieser and L. Pearl (London: Macmillan, 1936), 59–72. 82. See Groundwork of the Metaphysic of Morals, trans. H. J. Paton (New York: Harper and Row, 1964), 88–92. 83. See Leo Baeck, “Romantic Religion,” in idem, Judaism and Christianity: Essays, trans. Walter Kaufmann (Philadelphia: Jewish Publication Society of America, 1958), 240–56. 84. See Benny Kraut, From Reform Judaism to Ethical Culture: The Religious Evolution of Felix Adler (Cincinnati: Hebrew Union College Press, 1976). 85. See Tradition and Change, ed. M. Waxman (New York: Burning Bush Press, 1970). 86. For a critique of Conservative Judaism, when this author was still part of its community, see D. Novak, “Toward A Conservative Theology,” The Seminary at 100, ed. N. B. Cardin and D. W. Silverman (New York: Rabbinical Assembly, 1987), 315–26. 87. B. Kiddushin 42b and parallels. 88. See Novak, Election of Israel, 50–54. 89. All of my comments in this essay apply only to Jewish existence in the Diaspora. Even though I think that a Jewish social contract theory could be helpful in dealing with the theological-political problems of the Jewish people in the State of Israel and of Diaspora Jews in their relationship with the State of Israel, such a theory needs to be developed differently because of its very different subject matter. Only thereafter can such a theory be shown to have a cogent relation to Jewish social contract theory formulated by Diaspora Jews for Diaspora Jews whom such thinkers believe can live a Jewish life in the Diaspora in good faith, and that Diaspora Jewish life can have a positive mutual relationship with the State of Israel.

3 Justices Story and Holmes in the Realm of the “Brooding Omnipresence” Ann Althouse

Speaking in grand terms about law and truth, Cicero wrote: True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrongdoing by its prohibitions. And it does not lay its commands or prohibitions upon good men in vain, though neither have any effect on the wicked. It is a sin to try to alter this law, nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely. We cannot be freed from its obligations by senate or people, and we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times, and there will be one master and ruler, that is, God, over us all, for he is the author of this law, its promulgator, and its enforcing judge. Whoever is disobedient is fleeing from himself and denying his human nature, and by reason of this very fact he will suffer the worst penalties, even if he escapes what is commonly considered punishment.1

The United States Supreme Court has invoked this formidable passage, but only in a clipped-down form and only in Latin. The phrase “there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times” appears—in untranslated Latin—in Swift v. Tyson,2 the great nineteenth-century case that freed federal judges from the obligation to follow the common law interpretations made by state judges. The federal Rules of Decision Act had instructed the federal courts to apply “the laws of the several states” when there was no federal law to apply in a case that 77

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fell within the federal court’s jurisdiction, and, as we shall see, the Supreme Court would one day regard this statute as only restating what was required by the United States Constitution, which limited the legislative powers of the federal government. Nevertheless, Justice Joseph Story, author of the most prominent constitutional treatise of his time,3 looking only at the Rules of Decision statute, took the position that one could not regard the mere written opinions of state court judges as the “laws” of the state. Opinions are just that: opinions. They are “at most, only evidence of what the laws are.”4 The irrelevance of the constitutional limits on federal legislative power for Story is too clear for him to think of mentioning: a judge writing an opinion about common law is simply not legislating. He is finding the law, not making it. Cicero had written “[t]rue law is right reason,” a phrase Justice Story did not quote but did evoke when he stated that judicial cases are not laws because they “are often reexamined, reversed, and qualified by the Courts themselves, whenever they are found to be either defective, or ill-founded, or otherwise incorrect.” In that way of thinking, if the reasoning is not “right reason,” the purported law is not “true law,” as judicial willingness to engage in a continual reformation of common law doctrine bears out. A state may have “rules and enactments promulgated by the legislative authority,” but the common law, the “general” law that judges use when there are no “rules and enactments,”5 does not trace to any legislative authority. Thus, in Swift, the possibly defective reasoning of the New York state courts would not dictate the answer to a question about the negotiability of commercial paper, because, as “declared in the language of Cicero,” the law governing such matters is “not the law of a single country only, but of the commercial world. Non erit alia lex Romae, alia Athenis, alia nunc, alia posthac, sed et apud omnes gentes, et omni tempore, una eademque lex obtenebit.”6 In Swift v. Tyson, the Supreme Court was able to further the interests of commerce by “express[ing] our own opinion of the true result of the commercial law,” a broader negotiability for a bill of exchange than the New York courts had acknowledged.7 Story wrote long before Congress had begun to tap into what would ultimately be recognized as a vast power given by the Constitution’s commerce clause and before state legislatures had begun to use the strategy of achieving uniformity through the state-bystate enactment of uniform statutory codes.8 In its time, Swift’s approach to common law in the federal courts offered a seemingly promising way to smooth out differences among the states that impaired economic progress. Provided that the parties could satisfy the requirements of diversity jurisdiction and thus gain access to a federal court,9 there was at least the hope that the federal judge would transcend local biases and parochialism and arrive at the best rule of law. “Right reason” should produce “true law,” which, presuming good and reasonable judges reach consensus, would

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not vary from place to place, from Athens, Georgia, to Rome, New York. Disuniformity could still persist (as, indeed, it did),10 but at least Swift had put in place a mechanism capable of generating the uniformity that would benefit interstate commerce. Justice Story quoted only part of Cicero’s grandiose pronouncement, but can we infer that Story believed in its theology? Can we suppose that he thought there was “one eternal and immutable law” and that it existed because God had promulgated it? Story did not need metaphysical justification for his doctrine: practical, real-world concerns supported it, even though his hoped-for uniformity did not come into being. With hindsight, one can observe that judges persisted in articulating discordant legal rules; reason alone did not produce consensus in the complex field of human affairs that common law governed. Allowing federal judges to follow their own opinions added to the potential for disuniformity. Yet in its time, the interest in uniformity to promote interstate commerce was enough to justify the decision made in Swift. Beyond that, one could believe that there really is a true answer in the sense that there is a best rule on which competent, unbiased judges would, over time, converge.11 One could believe in “true law” without thinking that God had established it, but Story’s idea did not even depend on a belief that there was a true answer, let alone a belief that God created it. It was in the attack on Swift that its theological aspect found voice. In the late nineteenth and early twentieth century, Justice Holmes led the attack on “[t]he often repeated proposition . . . that the parties are entitled to an independent judgment on matters of general law.”12 He derided the notion that judges are “independent mouthpieces of the infinite, and not simply directors of a force that comes from the source that gives them the authority.”13 Judges, in his view, were conduits of a decidedly earthly power: they wield the authority of the government that has installed them on their benches. For Holmes, it was pure delusion to think that the reasoning process that is judicial work somehow puts judges on a different plane from mere legislators. Holmes’s derision, quite notably and even gratuitously, found expression in connecting Story’s doctrine to ideas about the divine—“the infinite”—even though Story had not written any such thing. Holmes wrote: I think our court has fallen into the error at times and it is that I have aimed at when I have said that the common law is not a brooding omnipresence in the sky and . . . is not subject to some mystic overlaw that [we are] bound to obey. When our U.S. circuit courts are backed up by us in saying that suitors have a right to their independent judgment as to the common law of a state, and so that the U.S. courts may disregard the decisions of the supreme court of the state, the fallacy is illustrated. The common law in a state is the common law of that state deriving all its authority from the state, as is shown by Louisiana

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where it does not prevail. But the late Harlan, Day, and a majority of others have treated the question as if they were invited to speculate on the common law in abstracto.14

If law is power, and if a judge must exercise power and “fall[s] into error” if he thinks he is finding law that somehow exists in the abstract, Cicero might seem to offer an answer to Holmes’s criticism. Cicero had a power source for the common law: God. But did Story think any such thing? We would need to presume Story knew and affirmed the full text of a passage of which he cited only part to think that ideas about God animated Story’s idea of common law as something that exists outside of a particular government’s authority, something that judges can find through reason. We cannot assume that Story was looking at the whole Cicero quotation, for he cites an English court opinion as his source.15 Justifying judicial independence with divine authority was only something Holmes attributed to the judges who believed in the doctrine he sought to discredit. Who thought God—as a ridiculous “brooding omnipresence in the sky”—bolstered the authority of independent judges? What was at most a trace of a belief in God’s contribution to law was used by Holmes as evidence of the error of thinking that judges operated in a sphere apart from legislators. But even Cicero’s law promulgator was no brooding God on a cloud in need of a judicial conduit to channel his law to earth. Cicero’s law was not “out there” somewhere but in the human mind. The “true law” came from reason itself; he wrote, “we need not look outside ourselves.” The law has a source in God, according to this passage from Cicero, only because God has endowed us with reason; law inheres in our nature, and we need only to use our reason to find it. The punishment for disobeying the law, in Cicero’s passage, was not torture in the afterlife, but the pain an individual must feel if he “flee[s] from himself and den[ies] human nature.” The “very worst penalties” come from the lawbreaker’s own denial of his human nature, which is reason. The level of belief in reason here is awe-inspiring: knowing the law is so much a part of having a human mind that one must actively flee from one’s own nature to avoid seeing and following it. It takes some effort to imagine Tyson, had he won his court battle (because a non-rightreasoning judge had allowed him to stiff Swift), going on to suffer inwardly as he struggled to flee from the truth with which his natural powers of reason would torment him. I am picturing the man tossing and turning in his bed at night, crying out “My God! He WAS a holder in due course!” In fact, Story, like Cicero, very well may have connected up the ideas of reason, law, truth, and God. A devoted Unitarian, Story believed, like many others of his time, that religion had an “indispensable” role to play in supporting government and reinforcing the civil society on which government depended.16 Moreover, Story subscribed to the belief, widespread in the

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nineteenth century, that Christianity was part of the common law.17 This belief suggests that, despite the absence of religious references in the Swift text, Story really did think the judge’s work in seeking answers in the common law was a search for a truth that God had established. Story’s biographer, R. Kent Newmyer, connects Story’s “quintessentially New England” Unitarianism to his “romantic idealism” and his “deep concern for social order” precisely because of that church’s “emphasis on a learned clergy—on ministers who would ‘think and speak for themselves, and expound truth with a clear and manly frankness.’”18 The resonance between this admiration of “learned clergy” and Story’s trust in the federal judiciary is too clear to miss. Swift put federal judges in a place to “think and speak for themselves, and expound truth.”19 Why should a less able state court judge be able to undercut the “manly frankness” of his federal brother? Justice Story’s Swift opinion, for all its grand statements and implications about the nature of law, had nothing to say about the Constitution. It simply explained how judges ascertain common law, the law that prevails until a legislature passes a valid written law. Constitutional law came into view only in overthrowing the Swift regime. Justice Louis Brandeis, writing Erie Railroad Company v. Tompkins,20 and taking up Holmes’s anti-Swift cause, identified the constitutional problem that made it necessary to overturn the century-old precedent. The unconstitutionality Erie found in Swift became perceptible only if one first decided that judges writing opinions about common law are actually making law and not just finding it or giving an “opinion” about what it “is.” Erie quoted Holmes: [L]aw in the sense in which courts speak of it today does not exist without some definite authority behind it. The common law so far as it is enforced in a State, whether called common law or not, is not the common law generally but the law of that State existing by the authority of that State.21

In the twentieth century—“today”—law would need “some definite authority behind it.” With God decidedly out of the picture as a lawgiver who might be cited as the “definite authority,” the federal judge writing his own “opinion” about what the law is would no longer be seen as a human being endowed with reason and ennobled by its usage, but as a deluded usurper of power. Since the common law embraced the entire field of human endeavors, ranging beyond the limited, enumerated powers the Constitution gave to the federal legislative authority, the federal judges under Swift were now revealed as “invading” the power the Constitution had reserved to the states:22 a century of unconstitutional decision making heretofore unseen! Swift had affirmed the independence of the federal judge; Erie invoked the independence of the state judges, the proper mouthpieces for the legislative power of the states. There could no longer be any concern that the

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state judges might sometimes fall short of “right reason” and “true law,” because their statements about common law did not need to be true. That was not the way to speak about law “today.” The state courts would be followed because they were authoritative. Law came from power, not truth. Hidden far behind the clouds was the arcane notion that there could be a divine power, who had made the law, created human beings with the capacity to reason, and made the true law available to us within our own minds. To introduce such a notion in defense of Swift in 1938 would have played into the Holmesian mockery of the brooding omnipresence. Erie’s recognition of the independent power of state judges should not obscure that fact that 1938, in the larger constitutional law picture, was not a time when power was flowing away from the federal government and toward the states. In 1937, the Court had abandoned both its attempt to maintain a narrow reading of Congress’s commerce power23 and its efforts to enforce constitutional “substantive due process” rights.24 Congress was at this point in history actively engaged in expanding federal statutory law governing the affairs of the commercial world, and the Court was retreating from enforcing limits on the commerce clause and from reviewing the reasonableness of statutes in the name of the due process clause. The resulting dramatic expansion of federal legislative power far overshadowed the loss of federal judicial power over the field of common law. In a sense even Erie increased federal power, as federal courts can be seen as having freed themselves of the burden of diversity jurisdiction cases. Erie removed a key motivation that had prompted litigants to choose federal over state court. The federal courts would consequently have more room on their dockets for cases based on federal law, positioning them to carry out the work of enforcing the very federal law that Congress had been unleashed to create. The same Court that rejected drawing lines to define the scope of Congress’s interstate commerce power abandoned Swift’s line between “general” and “local” law: thus, even as Erie was seemingly returning power to the state judges, it was rejecting the idea that there is a separate sphere in which the states were entitled to operate. Seeing Erie in this context reveals it as fully part of the move toward judicial restraint and deference to federal legislative power.25 The practical justifications that originally supported Swift also provide a better explanation of why the Court ultimately rejected it than the shift in jurisprudence that portrayed judges as making the law rather than finding it. Federal legislative power was now active and available to serve the goal of uniformity in all areas of interstate commercial transactions. Presumably, written codes would work much better at achieving uniformity than the piecemeal and subjective efforts of judges thinking about what rules ought to govern. To Story, however, we should attribute a skepticism about the work of legislatures, at least in contrast to the powers of his own formidable judicial mind: Story

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preferred his own treatises to codification of the common law, according to Professor Newmyer, because it “did not depend on the whims of politicians or the vagaries of legislative government.”26 The truly interesting question, it would seem, is why judges, in Erie’s time, felt motivated to lose faith in their own work and to accept the will of the legislatures. Erie fits neatly into the 1930s-era tightening grip of Holmesian judicial restraint. Judicial decision making had been debunked and discredited, and no reference to metaphysical law or even to the powers of reason (divinely created or not) could coax it out of the humble corner into which it had retreated. Judicial reason had a bad name, at least among pragmatists and progressives, for courts had stricken down too much progressive legislation as they exercised a power, which they perceived in the right to due process, to review all legislation to determine whether or not it is “reasonable.”27 After 1937, a legislature’s own reasons for its statutes would suffice, and the additional level of judicial review for reasonableness would be seen not as the enforcement of constitutional rights but as the judicial arrogance Justice Holmes had long accused it of being.28 Dissenting in Lochner v. New York29 in 1905, Justice Holmes had forsworn judicial reassessment of the reasonableness of legislation: But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we as legislators might think as injudicious or if you like as tyrannical as this, and which equally with this interfere with the liberty to contract. . . . [The Constitution] is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.

Here, Holmes revealed his lack of faith in the ability of reason to bring human minds to consensus, the belief Cicero and Story had shared. The people who have empowered themselves through legislative bodies have “fundamentally differing views” about what policies are desirable, and judges really ought to have nothing to say about it, because they are not legislators. The diverse opinions of the people are processed through the institutions of representative government. The resulting statutes might seem reasonable—”familiar” and “natural”—to the judge, but they might just as well look strange and “even shocking.” Human minds would not converge through reason, but would remain hopelessly divergent. The constitutional solution was simply to mediate all that diversity and difference of opinion through representative legislative bodies. In Holmes’s view, it was entirely wrong to bring on the judges to impose law-as-reason, rights in the form of

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truth that the human/divine mind knows, the disreputable “natural rights.” In 1937, the Court had shifted to the Holmesian view, and Swift lay hopelessly stranded in the past, unhip to the way “we speak of [law] today.” The Court had solidified the national grasp on power and had done it with modern ideas about legislation. The grandiosity of pseudo-divine law-truth, an outmoded, nineteenthcentury fashion, could be safely shed, with none of its practical benefits lost. It was the heyday of majoritarianism, and Holmes had been the trendsetter. To Holmes, the judge had no line to the truth. Legislative choices would provide the best answers because they aggregated the thoughts of many persons, not because the people had human minds capable of knowing truth—to Holmes, they were all pursuing their own interests and seeking to “shift disagreeable burdens” onto others30—but because there were so many minds involved in the process as to create some probability that their ideas would tend to congregate around good answers.31 Holmes wrote: “I am so skeptical as to our knowledge about the goodness or badness of laws that I have no practical criticism except what the crowd wants.”32 A scrap of metaphysics fluttered into Holmes’s hardheaded prose: I quite agree that a law should be called good if it reflects the will of the dominant forces of the community even if it will take us to hell.33 [I]f you can pay for your ticket and are sure you want to go, I have nothing to say.34

There is at least the metaphor of “hell.” Yet Holmes the judge cannot and will not save us from that hell. He is so bereft of ideas about good and evil that he can only defer to what the group has chosen. How thoroughly removed is the Holmesian judge from Cicero’s human being who can barely flee from the force of the reasoning that it is his nature to pursue and that binds him to the truth! Holmes seems unable to conceive of an alternative for himself but to sit and watch the forces of the majority drag us wherever they like. Cicero’s reason was “in there,” planted in the human mind, not “out there” in the clouds as Holmes would have it. Indeed, it was Holmes who surrendered to an outside force when, finding no resources in his own human nature, he accepted the will of the majority. This acceptance, cleansed though it is of any metaphysics, intriguingly resembles a most transcendent moment Holmes recorded in his Civil War diary. Wounded in battle and believing himself at the point of dying, Holmes considered how in the “majority vote of the world” his opinions about religion meant he was “en route for Hell.”35 He rejected the idea of a “cowardly” deathbed recantation and realized he could not even honestly recant. Then came in my Philosophy—I am to take a leap in the dark—but now as ever I believe that whatever shall happen is best—for it is in accordance with a

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general law—and good and universal (or general law) are synonymous terms in the universe. . . . Would the complex forces which made a complex unit in Me resolve themselves back into simpler forms or would my angel still be winging his way onward when eternities had passed? I could not tell—But all was doubtless well—and so with a “God forgive me if I’m wrong” I slept.36

Holmes refused to accept the beliefs he knew the majority possessed, yet he accepted what fate was doing to him and conceived of that as a “good and universal (or general law).” It is striking indeed that Holmes’s final thought before he fell into the sleep that he believed would be death was an embrace of good, transcendent, universal “general law.” One is tempted to muse that Holmes’s rejection of the judge’s pursuit of universal “general law” applicable in lawsuits, sprang not so much from his disbelief in general principles existing outside of himself but in his profound surrender to the outside forces that besieged him.37 The “true law” of Cicero and Story was not up in the sky and in need of a mouthpiece judge, it was the natural working of the human mind, bringing order to the world by discovering good rules. Holmes may have depicted Story’s law as “out there,” because he experienced the inside of his own head in a different way, but in a way that had a religious quality to it, perhaps more religious than the commitment to reason and truth that took on a religious cast for Cicero and Story. Holmes’s mind did not find true rules naturally. He saw others generating lots of ideas about what the rules should be and acting “out there” in the political world making their rules into law, and he responded with a deep and spiritual surrender: do whatever you want, I have nothing to say about it, I have no way of my own to know what is good and what is not, I surrender, whatever is, is good. Because Holmes did not die but brought his death thoughts forward in his life, he was able to bring what can be seen as a deeply spiritual philosophy into American constitutional law. What was “in there” for him was profound surrender to a powerful force outside of himself, the force of the people exercising their power through constitutional institutions. This was, one might dare to suggest, a theology of judicial restraint.

NOTES 1. Marcus Tullius Cicero, The Republic, trans. Clinton W. Keyes, Loeb Classical Library (Cambridge, Mass.: Harvard University Press, 1950), at III, XXII. 2. 41 U.S. 1 (1842). 3. Surely, Story recognized that Constitution gave only limited powers to the federal government. Speaking of the Tenth Amendment, he wrote in his treatise: “[T]his amendment is a mere affirmation of what, upon any just reasoning, is a necessary rule of interpreting the constitution. Being an instrument of limited and

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enumerated powers, it follows irresistibly, that what is not conferred, is withheld, and belongs to the state authorities.” Joseph Story, Commentaries on the Constitution of the United States: with a Preliminary Review of the Constitutional History of the Colonies and States, Before the Adoption of the Constitution, 3 vols. (Boston: Hilliard, Gray, and Co.; Cambridge, Mass.: Brown, Shattuck, and Co., 1833), 3: 752. 4. 41 U.S. 35. 5. 41 U.S. 36. Swift recognized that there was some unwritten law that was not “general” but “local,” and hence not governed by general principles but by “positive, fixed, or ancient local usage” (36–37). This distinction led to many arguments and uncertainties and made for one of the practical problems that led the Court to reject Swift in Erie Railroad Company v. Tompkins, 304 U.S. 64 (1938). Story was overwhelmingly concerned about commercial law; see note 17, infra (he was working on a series of treatises on commercial law at the time he wrote Swift). Later, through the process of drawing the line separating “general” and “local” law, courts expanded the federal courts’ lawsaying role beyond interstate commerce to areas of law that did not have the same strong arguments favoring uniform rules. As Story’s biographer has written: “Federal judges began to implement Swift immediately, with the general approval of state courts and legal commentators. But the major breakthrough came after the Civil War when the Supreme Court expanded the category of general commercial law created by Swift to include municipal bonds and torts. In the process, the distinction Story drew between general and local law was blurred, so that further intrusions of federal judge-made law were invited into areas once reserved to the states.” R. Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic (Chapel Hill: University of North Carolina Press, 1985), 335. 6. Newmyer, Supreme Court Justice, 37–38. 7. The New York courts had held that a person who takes a bill of exchange in payment for a preexisting debt is not a “holder in due course,” who takes the bill free of the defenses arising out of the initial transaction. Newmyer, Supreme Court Justice, 31. 8. Yet the idea of codifying the common law was a vivid issue in Story’s day. See Newmyer, Supreme Court Justice, 272–89. In an 1811 letter to President James Madison, Jeremy Bentham had offered to write a statutory code comprising all of American law, which, given the chaotic records of the common law of the time, inspired a movement toward codification (272–73). Story took a mediating position between those who wanted complete codification and those who wanted none (272). He did not believe that the nuances of common law decision making could be replaced by statutes—he scoffed at the “perfect, infallible, or universal system” that Benthamite radicals envisioned—but he favored some codification, in areas already worked over by judges (274). Story believed that law ought to be “gradually formed,” and—contrary to Cicero’s dictum—that it “must differ in different ages, according to the different circumstances of society” (274). Story wanted a secondary role for the legislature: clarifying the principles developed in the judicial cases and setting down rules that lawyers could follow (subject to interpretation by courts applying the law in particular cases) (276). Story served on a Massachusetts commission that considered codification, which he undertook in part to moderate the efforts of the radical reformers (278–79). Under his leadership, in 1837, the commission recom-

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mended codification only of the criminal law, the law of evidence, and “those areas of commercial law already settled according to principle by the courts, particularly ‘commercial contracts’ ‘[including] bills of exchange.’” (279). (Thus, the issue that arose in Swift was one that Story would have codified.) There is some basis to believe that Story participated in the commission only to undercut the radical reformers, and indeed the codification movement proceeded to die out in Massachusetts and elsewhere by the time Swift was decided in 1842 (280). Story himself had moved on to treatise writing, which was, of course, also aimed at bringing order to the chaos of the judicial decisions (281). It seems fair to attribute to Story a preference for clarification by a single, brilliant judicial mind rather than a legislature. 9. 28 U.S.C. §1332, based on U.S. Const., Art. III, §2, permits the federal courts to hear cases between citizens of different states and between United States citizens and citizens of foreign countries. 10. Newmyer, Supreme Court Justice, 335. 11. See Newmyer, Supreme Court Justice, 287–88 (describing Story’s use of English and Roman law in a “self-conscious, eclectic, practical minded comparative jurisprudence” to derive the rules he expounded in his treatise on commercial law). Newmyer rejects Holmes’s characterization of Story’s method as relying on a “brooding omnipresence in the sky”: The comparative and historical techniques, as Story applied them, were demanding and rigorous, and the ‘universal reasoning’ they ascertained was based, in good Burkean fashion, more on what was than on what should be. One might even be so bold as to argue that, through Story’s brand of scholarship, he was in a meaningful sense really discovering the law and not making it. Above all, Story’s reliance on cases imparted a practical tone to his books. The principles he extracted from cases were not the “disembodied cherubs” that Holmes found fluttering about in most treatises, and nowhere were they distilled to abstract logic. Newmyer, Supreme Court Justice, 288–89. 12. Black and White Taxicab and Transfer Company v. Brown and Yellow Taxicab and Transfer Company, 276 U.S. 518 (1928), Holmes, dissenting. 13. Letter from Holmes to Harold Laski, Jan. 29, 1926, in Richard A. Posner, ed. and Intro., The Essential Holmes: Selections from the Letters, Speeches, Judicial Opinions, and Other Writings of Oliver Wendell Holmes, Jr. (Chicago: University of Chicago Press, 1992), 235 (emphasis added). 14. Posner, The Essential Holmes. Holmes’s tendency to view legal scholarship he disapproved of as theology is also revealed in his famous quip that Christopher Columbus Langdell was “the greatest living legal theologian.” See American Law Review, 14 (1880), 233, 234. 15. See Swift v. Tyson (quoting Lord Mansfield in Luke v. Lyde, 2 Burr. R. 883, 887; see 97 English Reporter [1759], 614, 617). It is important here to recognize that Story was, during this period, writing a series of treatises on private law, including a treatise on Bills of Exchange published in 1843, one year after Swift (Newmyer, Supreme Court Justice, 281). According to Newmyer, these treatises formed “interrelated parts of Story’s grand effort to create an American commercial common law suitable both to the needs of the new capitalism and to the values of the old republicanism” (282). Story’s treatises drew on an existing English tradition of treatise writing and owed a particular debt to Mansfield’s writings on commercial law (283–89). Thus,

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the citation to Luke v. Lyde in Swift seems to have more to do with Story’s respect for Mansfield than a real interest in the source Mansfield tapped. 16. Newmyer, Supreme Court Justice, 183. Story actively opposed disestablishment in Massachusetts, though he supported religious toleration, and thought the states should encourage religion. 17. Newmyer, Supreme Court Justice, 182–84. See also Joseph Story, “The Value and Importance of Legal Studies,” in William W. Story, ed., The Miscellaneous Writings of Joseph Story (New York: Da Capo Press, 1972; facsimile of 1852 ed.), 517: “there never has been a period in which the common law did not recognize Christianity as lying at its foundations.” For further discussion of this idea, see Daniel L. Dreisbach, “In Search of a Christian Commonwealth: An Examination of Selected Nineteenth-Century Commentaries on References to God and the Christian Religion in the United States Constitution,” Baylor Law Review 48 (1996), 927. 18. Newmyer, Supreme Court Justice, 180 (quoting Story to Sarah Story, February 23, 1827, Story Papers, University of Texas Library, Austin, Texas). 19. Likewise, Story’s own prodigious efforts in bringing order and clarity to many fields of law through writing treatises, see note 17, supra, attests to his confidence in the benefits of the work of a single, gifted scholar. That is, the “romantic idealism” Newmyer, Supreme Court Justice, 180, saw in Story’s ideas about religion is reflected in Story’s approach to his own legal work. 20. Erie Railroad Company v. Tompkins, 304 U.S. 64 (1938). 21. Erie Railroad Company v. Tompkins, 79. 22. Swift had embroiled the federal judges in making law across the entire range of human activities, and not merely about matters over which the Constitution had granted the federal government legislative power. See note 7, supra. Although Congress almost certainly could have legislated the particular rule of tort liability in question in Erie (concerning the liability of an interstate railroad), the Swift interpretation did not distinguish between areas where federal legislation was permitted and matters that are reserved to the state. Swift itself related to commercial law and clearly relates to Story’s interest in producing a uniform commercial law. In this area, by the time of Erie, Congress’s power to act should not have seemed far-fetched. The serious constitutional problem with Swift should be seen as the product of late-nineteenth-century expansions of “general” law at the expense of “local” law, which extended the Swift approach to ordinary tort cases, much more clearly intruding on the power reserved to the states. 23. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937); Steward Machine Co. v. Davis, 301 U.S. 548 (1937). 24. See West Coast Hotel v. Parrish, 300 U.S. 379 (1937). 25. See Edward A. Purcell, Jr., Brandeis and the Progressive Constitution: Erie, the Judicial Power, and the Politics of the Federal Courts in Twentieth Century America (New Haven, Conn.: Yale University Press, 2000), 120–24, which describes Brandeis’s commitment to judicial restraint. 26. Newmyer, Supreme Court Justice, 284. 27. See Lochner v. New York, 198 U.S. 45 (1905). 28. No sooner is restraint embraced than regret sets in: United States v. Carolene Products, 304 U.S. 144 (1938), was announced on the same day as Erie. 29. Lochner v. New York, 198 U.S. 45 (1905), 75.

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30. Holmes to Felix Frankfurter, March 24, 1914 (quoted in Albert W. Alschuler, Law Without Values: The Life, Work, and Legacy of Justice Holmes (Chicago: University of Chicago Press, 2000), 58. 31. Grant Gilmore, The Ages of American Law (New Haven, Conn.: Yale University Press, 1977), 50–51. Gilmore speculates about the influence of Charles Pierce on Holmes, through Holmes’s membership in the “Metaphysical Club,” with respect to a belief in the “communal nature of knowledge.” Louis Menand, The Metaphysical Club (New York: Farrar, Straus and Giroux, 2001), 421–33, describes Holmes’s use of ideas about probability as a replacement for truth. 32. Holmes to Pollock, April 23, 1910, quoted in Alschuler, Law Without Values, 59. 33. Holmes to Felix Frankfurter, March 24, 1914, quoted in Alschuler, Law Without Values, 59. 34. Holmes to Canon Patrick Sheehan, November 23, 1912, quoted in Alschuler, Law Without Values, 59. 35. G. Edward White, Justice Oliver Wendell Holmes: Law and the Inner Self (New York: Oxford University Press, 2001), 73. 36. White, Justice Oliver Wendell Holmes, 73–74. 37. It should not be forgotten that Holmes did not admire the work of the majorities he deferred to. He wrote, “I loathe the thick-fingered clowns we call the people—especially as the beasts are represented at the political centers—vulgar, selfish, and base,” Holmes to his sister Amelia, November 16, 1862, quoted in Alschuler, Law Without Values, 58, and “The more powerful interests must be more or less reflected in legislation, which, like every other device of man or beast, must tend in the long run to aid the survival of the fittest.” Holmes, “The Gas-Stokers Strike,” American Law Review, 7 (1873), 583–84 (1873), quoted in Alschuler, Law Without Values, 58. Legislation, for Holmes, was a way of “shift[ing] disagreeable burdens from the shoulders of the stronger to those of the weaker.” Holmes to Felix Frankfurter, March 24, 1914, quoted in Alschuler, Law Without Values, 59. As Alschuler has put it, “Although Holmes viewed the legislature as an unprincipled battlefield, he believed that judges should not deprive the victors of their spoils” (58).

4 Theology, Society, and the Vocation of the University Arnold M. Eisen

The founders of modern Jewish Studies, writing almost two centuries ago, expressed the confident hope that, by securing a legitimate place for their new discipline in the university, they would also help to secure a rightful place for Jews in the society and culture beyond the academy. Science, asserted Immanuel Wolf, defined “the characteristic attitude of our time,” and Jews’ engagement with it would serve to demonstrate “their mettle as fellow-workers in a common task of mankind. . . . On this level the relationship of strangeness in which Jews and Judaism have hitherto stood to the outside world must vanish.”1 Leopold Zunz put the matter in even more fateful terms. “The development of our science in a grand style is a duty, one whose weight increases because of the fact that the complex problem of the fate of the Jews may derive a solution, if only in part, from this science.”2 I shall assume in this chapter—following a suggestion by the great Protestant theologian Karl Barth3—that the role of theology in the modern university (or, more accurately, the marginality or lack of such a role) likewise reflects and helps to shape religion’s place in the society and culture beyond the academy. Where theology fits or does not fit in the American scholarly enterprise of research and teaching thus remains a matter of importance not only in defining the nature of the university, and of theology itself, but also the character of the society that the academy influences and serves. The relationship between university, society, and science—the last being, at least in most academic circles, “the characteristic attitude of our time”—remains uneasy at best. I hope to show why that is so by juxtaposing a careful and critical reading of one of the classic meditations on these issues in the twentieth century, Max Weber’s beautiful, haunting, 91

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and utterly problematic essay, “Wissenschaft als Beruf” (1919), with briefer analyses of the very different points of view articulated by two influential American Jewish religious thinkers of the same century, Abraham Joshua Heschel and Mordecai M. Kaplan. From varying starting points, both question Weber’s commitment to the principled dichotomy of fact and value. Indeed, both make the meaning of science, its “vocation” in Weber’s terms, dependent on the very faith commitment that Weber insists every scholar must abjure or suspend. We should then be in a position, I hope, to distinguish—as Weber and his Jewish “respondents” did not—between theology’s role in the teaching and the research functions of the university, as well as to reflect more insightfully on the parallels (and differences) between theology’s role in the academy and religion’s role in society as a whole. I should confess at the outset that even at the end of these reflections I will not by any means be in a position to provide a “solution, even if only in part,” to the issue that Weber posed. I aim only at greater clarity as to why the matter remains so vexed, and so interesting.

THEOLOGY AND THE UNIVERSITY My focus in this section will be the particularly difficult passage near the end of “Science [or ‘Scholarship’] as a Vocation” (both English words resound in the German word Wissenschaft), in which Weber explicitly takes up the question of theology’s place in the university.4 We should begin, however, with the groundwork that Weber laid for his claims on the matter early on in the essay, and specifically with the key stipulation that “scientific progress is a fraction, the most important fraction, of the process of intellectualization which we have been undergoing for thousands of years.”5 That unequivocal linkage of science with rationality comes right after Weber’s painstaking effort in the essay’s opening section to demonstrate that scientific careers are subject to forces so unfair and unpredictable that “academic life is a mad hazard.” Scientific discovery, he has warned us, depends not only upon careful research, but also upon “inspiration,” destinies that are hidden from us, and “gifts.” Moreover, he repeatedly describes the “inward calling for science,” that most rational of pursuits, in such utterly irrational terms as “passion,” “intoxication,” and “devotion.”6 The irony on view here is pronounced—and fully intended. It will prove central to all that follows. We find irony front and center once again in the next crucial piece of background to the theology discussion: Weber’s attempt to “clarify what this intellectualist rationalization created by science and by scientifically oriented technology means practically.” He notes at once what it does not

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signify: greater knowledge for the average person of “the conditions under which one lives.” Most modern men and women are ignorant of those conditions. The triumph of science rather offers the possibility, in principle at least, of acquiring such knowledge—because “the world is disenchanted”; “there are no mysterious incalculable forces that come into play.”7 But Weber qualifies and complicates this claim too, first of all with his assertion that the value of science cannot be demonstrated. Precisely because of the disenchantment that it has accomplished, science can only presuppose but not prove the value of its own discoveries. That value, like all other values, “cannot be proved by scientific means,” precisely because it is value rather than fact. Rationality rests on irrational presuppositions. The terrain it orders constitutes an island surrounded by other realms beyond its ken.8 Next, after a plea that politics, like all other realms of value, be excluded from the classroom, Weber subverts the claim to disenchantment itself: “The various value-spheres of the world stand in irreconcilable conflict with each other.”9 “Different gods,” he adds, “struggle with one another, now and for all times to come.”10 In this condition of moral relativism, Weber writes, “we live as did the ancients when their world was not yet disenchanted of its gods and demons.” Everyone still sacrifices to the gods of the city; “[o]nly the bearing of man has been disenchanted.” The battle among the gods continues “now and for all times to come.”11 We have moved in the space of a very few pages from a disenchanted world in which no mysterious incalculable forces come into play (except, apparently, in scientific as in other careers), to a world of eternally competing gods (metaphorical, of course, but no less unfathomable for that) and merely apparent disenchantment. The individual scholar, like science as a whole, can only trace the never-ending struggle among values but cannot hope to resolve any of the issues dividing human states and cultures. Indeed, Weber never claims that science actually gives us fact, reality, the world as it really is, and he pours scorn on those who believe that it can. Every scientific discovery raises new questions. Every achievement in science begs, as it were, to be surpassed. Weber cannot see any end to this progress of ever-receding truth. Quite the opposite: “It is our common fate, and, more, our common goal.”12 Why engage in science, then, aside from personal satisfactions and the technological achievements that science brings? One does so, Weber says, because science (as what Wolf called “the characteristic attitude of our time”) is the only available framework in which moderns can credibly seek reliable knowledge of the world. Those obedient to the “duty of searching for the truth” gain as much clarity about the facts as science can afford, and are then in a position to choose—and to help others choose—what values they will serve. Facts inform these value-choices, but cannot determine them. The duty to search for truth—itself, of course, a value, not a fact—lies

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beyond the realm of “truth” to which it directs us. Weber often speaks to the reader quite tragically as a person who would like break free of the “iron cage” of his culture because he is all too aware of its limitations when it comes to providing meaning to life. But he cannot escape his own culture and maintain intellectual integrity—for him a preeminent value. So things are in our day, he seems to say. All the modern individual can do, if he or she retains intellectual integrity, is to choose which god to serve. All the scholar or teacher can do—if he or she is to retain intellectual integrity—is to assist individuals in making difficult decisions of ultimate value by providing relevant knowledge, especially the facts “inconvenient” to the path they have chosen. By the time Weber reaches the end of the essay and explicitly takes up the question of the stand one should take regarding “the factual existence of ‘theology’ and its claims to be a ‘science,’”13 he has both eloquently established—and effectively undermined—the two principal grounds on which he will proceed to answer that question (implicitly but clearly) in the negative. The first pertains to the methods and presuppositions of scholarly research. The second concerns the vocation of the classroom teacher, and, by extension, of the university as a whole. “All theology represents an intellectual rationalization of the possession of sacred values,” Weber declares—undoubtedly aware, as he makes this (liberal Protestant) generalization, that many of the religious movements that he himself had studied, including some within Christianity, would dispute its claim concerning the primacy of experience over belief. The very next sentence refers implicitly to another obvious objection that could be offered on the basis of Weber’s own evidence: no science is free from presuppositions. Theology is not unique in this regard. Weber responds with the assertion that “every theology, however, adds a few specific presuppositions for its work and thus for the justification of its existence.” But he recognizes at once that “their meaning and scope vary.” And—the very next sentence— “It is the same as with Kant’s epistemology,” which took for granted the existence of scientific truth and inquired about the presuppositions necessary for that truth to exist.14 The presuppositions of theology, then, hardly seem a convincing reason for its exclusion from the university. The perplexing ins and outs of Weber’s argument circle around one central claim. Religion is different from other sorts of belief and activity, and so theology is different. The difference lies in the fact that religions consist of beliefs—systematized as theologies—which are built upon experiences of miracle and revelation. These experiences, unlike the means to other sorts of knowledge, are not available to all but constitute a “possession” bestowed via “subjective states and acts.” Therefore the theology spun out to make sense of these states and their implications, however rational—because in principle accessible to all—is ultimately irrational and unscientific. “Whoever does not ‘possess’ faith, or the other holy states, cannot have

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theology as a substitute for them, least of all any other science.”15 As Weber puts it earlier in the essay, science is ‘free from presuppositions’—he encloses the claim in scare-quotes because of its patent contradiction to his own argument—“in the sense of a rejection of religious bonds.” The statement is telling. Science does not know of miracles or revelation, and, if it did, it would be “unfaithful to its own ‘presuppositions.’”16 Religious presuppositions are different in kind from all others. Science and theology, despite appearances, are thus mutually exclusive—by definition. This assertion too is fraught with difficulties, to which I shall turn momentarily, but it is of a piece with two earlier statements to the same effect: first, “That science today is irreligious no one will doubt in his innermost being, even if he will not admit it to himself”; and, second, “Redemption from the rationalism and intellectualism of science is the fundamental presupposition of living in union with the divine.” Weber distanced himself somewhat from the latter claim by attributing it to “German youth,”17 but in the theology section of the essay such qualification disappears. He states unequivocally that every devout individual reaches the stage of believing not despite, but because, belief is absurd. “Intellectual sacrifice is the decisive characteristic of the positively religious man.” Weber then repeats the claim that “the fate of our times is characterized by rationalization—and, above all, by the ‘disenchantment of the world,’” and this time he leaves the claim without ironic reversal. Indeed, Weber continues with uncharacteristic scorn, the arms of the churches are opened wide to receive “the person who cannot bear the fate of the times like a man.”18 This is strong stuff from a professed moral relativist. Weber cannot look down on religious or ethical dispute from the heights of objective Enlightenment reason. But he insists nonetheless on a dichotomy between faith and reason that is as absolute as that separating value from fact, and declares that only the latter belongs in the modern home of reason, of wissenschaft—the university. The simplicity of this avowal by a man whose scholarship is rife with complexity; its utter lack of irony, in the context of an essay that at every other point delights in irony; the dichotomy of faith and reason, from a man who stressed in the opening paragraphs of his Sociology of Religion, that religion has often been a very rational pursuit—all these cry out for explanation. What is going on here?19 Three explanations, by no means mutually exclusive, suggest themselves. First, Weber’s scholarship on religion is not entirely free from such overgeneralization. In the other essay that ventures closest to personal credo, “Religious Rejections of the World and their Directions” (1915), Weber posits allegedly universal conflicts between “religion” as such, which he associates with an ethic of “brotherliness,” and the “value-spheres” of politics, the economy, aesthetics, eros—and the intellectual realm.20 Equally problematic is Weber’s characterization of the ideal type of “traditional authority,”

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both in “Politics as a Vocation” and in Economy and Society, as pure habit or rote performance, the “eternal yesterday.” Creativity is assigned only to the charismatic leader, while modern dignity is implicitly reserved to rational authority alone.21 What is more, Weber’s tendency to slide from such ideal types to empirical generalization is notorious.22 The present chapter, then, is far less an aberration than it initially appears. Second, Weber’s scholarship as a whole, from the Protestant Ethic onwards, was driven by the need to account for the fact that rationalization had developed to a unique degree and in a uniquely comprehensive fashion only in the modern West. This development came about, according to Weber’s famous understanding of the matter, because Puritans were driven by their belief in God’s arbitrary judgment of human beings to an eternity of heaven or hell to seek confirmation in worldly “callings” of their ultimate destination. In the process they made the world as calculable, logical, organized, and controllable as they possibly could. The modernizing/rationalizing forces (especially capitalism) then banished their religious “parent” to the sidelines (i.e., to the private life of the individual soul or the small religious community) and largely restricted religion to the realm of affect and sentiment (i.e., outside the realm of reason). The university could not very well include the very force which it essentially negates, of which it is the offspring, and from that it has been so recently emancipated. To do so would demonstrate, contrary to fact, that the world is not disenchanted, that “mysterious, incalculable forces” are very much in play, and first-rate minds are devoted to thinking about them.23 Finally, Weber’s arbitrary distinction between the irrational presuppositions of theology and the meta-rational presuppositions that lie behind every sort of scholarship (and which are at work in artistic creativity and business entrepreneurship24) reflects the fundamental and problematic distinction that plagues all of his writing on rationalization: that between formal and substantive rationality. Weber claims to be able to distinguish between objective judgment about that which is formally most efficient as the means to a given end, and necessarily subjective judgment about the relative value of ends—the realm of substance.25 Thus, a plan to feed 10 percent of a population while starving the other 90 percent may be judged on substantive grounds (beyond the realm of fact and science) to be irrational. Once it has been adopted as policy, objective criteria can determine which means are most formally rational. This distinction, as has long been noted, has the effect of privileging instrumental activities that allow for calculation and of excluding other means and ends of action from consideration by the social scientist. The only rationality that can be discussed, and so the only rationality which seems worthy of discussion in Weberian terms (despite Weber’s own interest in nonrational phenomena such as charisma), is that of means, particularly of means that can be quantified. Religious experience,

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of all areas of inquiry, is perhaps farthest from this limited realm of inquiry, most remote from its preferred tools of understanding. Weber, instead of noting the difficulties of making sense of religion, and comparing them with the formal irrationalities involved in the study of music, for example, or of politics, apparently prefers to banish theology from the university altogether. The reason, I suspect, is that Weber has a second objection to theology’s presence in the university: its alleged perversion of what he deems the essential—and essentially moral—vocation of the classroom teacher. Weber holds that the primary duty of the scholar is “to teach his students to recognize ‘inconvenient facts’—I mean facts that are inconvenient for their party opinion. And for everyone there are facts that are extremely inconvenient, for my own opinion no less than others.” Good teachers “can force the individual, or at least we can help him, to give himself an account of the ultimate meaning of his conduct” (i.e., that this end usually entails that means, or tends to conflict with that end, or logically presumes assumptions X or Y). Teachers of inconvenient facts thus help the student do his or her duty to “meet the demands of the day.”26 Weber believes this value a great good, one which inheres in the project of the modern university as such. He terms ethical action in the world a “damned duty, “ and confidently proclaims the value-neutral but value-inspired and value-directed teaching that helps us perform that duty the primary vocation of science, indeed the ultimate meaning of science in the disenchanted world that science has helped to disenchant. Science no longer has any meaning more ultimate. That is why the teacher, like the researcher, must keep a careful silence regarding values, the ends of conduct—a silence that increases the importance of what the teacher can say, the realm that he or she can address: that of means to ends, of inconvenient facts. Weber knew, of course, that this notion of the scholarly vocation was not fact but credo, and his position on removing “prophecy” from the classroom—expounded with a rare combination of insight, humility, and passion—seems to me quite cogent, in contrast to the twists and turns of his argument about the problematics of theological research. Many scholars in the contemporary academy, myself included, recognize a duty to help students think clearly and independently of us, their teachers. Like Weber, we tend to regard advocacy in the classroom, whether political or religious, with suspicion or even derision. We also know, however (as did Weber, I suspect), that all teaching inevitably promotes certain values. Even if, strictly speaking, professors make no explicit case for this or that value, they do so implicitly all the time. We spend scarce resources on X rather than Y, focus attention on a particular aspect of reality rather than others, select the data and theories presented, and demonstrate by criticizing person A or viewpoint B how well they stand up to criticism. We set forth values simply

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by performing the commitment of our lives to the study of one narrow corner of creation. In the course of increasing understanding of the phenomenon being studied, one’s teaching often increases appreciation for the values it presumes and seeks to further. Weber would not have objected to any of these inevitable features of classroom teaching, I believe, just as he had no quarrel with the role of values in the selection of the facts or values examined. He was not averse to placing reason in the service of noble passion; indeed, he found such passion indispensable to the scholarly vocation. Nor was he opposed to the “science of religions,” for he helped to establish that science. The “religiously musical” researchers whom he believed a necessity for the study of religion would presumably conduct “music appreciation” lessons in their classrooms. Their courses might well increase appreciation for the various values held sacred by the world’s religions. Weber, a pioneer comparativist, would have joined in and rejoiced in what we today call religious studies. Why then, having rejected any pure dichotomy between “facts” and “values,” and having admirably complicated the issue of the teaching vocation by these considerations, did Weber nonetheless find theology (as distinguished from religious studies) particularly objectionable as a subject of classroom study? His first concern seems to be not so much theology as the theologians who normally teach it—a group who are committed by definition to explicit advocacy of one particular set of truths based on a particular revelation or miracle. Theologians avowedly aim not only to present facts and values as they see them, but—through vivid and impassioned presentation—to strengthen believers in their faith and/or to win converts to that faith. This is their vocation, and it turns their classroom teaching by definition into a form of advocacy. Like political advocacy, theology taught by a theologian doubly undermines the university vocation by (1) precluding the discovery of “inconvenient facts” and (2) forcibly recommending one ultimate value as opposed to all others. The theologian does so in a way that a philosopher, for example, does not in winning converts to a philosophical path, and an art historian does not in persuading students to love art, and an anthropologist does not in making the case for human diversity. Only a politics professor urging a particular political path or norm (Weber gives the example of pacifism) is comparable, and, indeed, Weber explicitly and repeatedly draws the analogy between “prophet” and “demagogue,” theology and politics. I assume he would have had similar quarrels with, say, a business school professor who fails the test of self-criticism where the rules of multinational corporations or currency speculation or the International Monetary Fund are concerned, or with an economist who rules out all criticism of the discipline’s capitalist assumptions, or with a law school closed to critical legal studies. The list goes on, but the point is that one feels differently about imposing a particular value-standpoint

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on students in the classroom, through the exercise of authority and power that a teacher wields, than one does about debating that value-standpoint in the forum of the university as freely as possible or engaging in scholarly work, which will then be subject, like all scientific research, to the critical scrutiny of one’s peers. Weber voices a second, somewhat different concern when he makes the legitimacy of teaching even religious studies (as opposed to theology) at the university conditional upon precisely a sort of peer review in the classroom. “How should a devout Catholic, on the one hand, and a Freemason, on the other, in a course on the forms of church and state or on religious history ever be brought to evaluate these subjects alike?” (One wonders if the Freemason might be standing in for a nonbeliever such as Weber here.) The answer, Weber says, is that they cannot “evaluate these subjects alike,” but this does not matter so long as all are willing to acknowledge that if a process or event can be explained without reference to supernatural intervention, then it has to be explained that way. “And,” he adds, “the believer can do this without being disloyal to his faith.”27 I am not sure. How could a believer accept such naturalistic explanation? And why would he or she do so? Is Weber being disingenuous here? I think not. For one thing, Weber generally made it easier for himself to avoid a firm yes or no to faith in his own scholarship and teaching by focusing almost exclusively upon what he called “Die Wirtschaftsethik der Weltreligionen.” Not Protestantism, but the Protestant “ethic,” was his early focus, and only in relation to the spirit of capitalism. Sermons on the calling are examined in the book only in order to understand “the manner in which ideas become effective forces in history.”28 Weber usually stayed away from direct contact with what he called miracle and revelation, as it were protecting religion through the inability of science to judge matters of value, and in the process devaluing religious claims through science’s inability to consider “supernatural interventions” as “causal factors.” Much Weberian religious studies continues along this road today, well equipped to examine religion as cause and effect of social and cultural processes, and perhaps to do the history of theology: such and such belief or practice led to this or that form among group X in circumstances Y. Up to a point, religious studies can even observe religious experience from a safe distance. We can engage in the hermeneutics of faith claims through the interpretation of sacred texts and practices. But even “religiously musical” scholars remain wary of bringing personal experience to bear when it comes to making sense of such texts. Nor would most university teachers encourage or facilitate religious experience among their students. In this sort of “value-free” classroom setting, of which Weber would have approved, given these sorts of limits, the religious student of religion might well perform (or at least attempt) the exercise in bracketing faith that Weber’s religion classroom demands. That exercise

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would be immeasurably more difficult if the teacher were a theologian committed to expounding his or her own faith with sympathy and passion. The question remains, however, whether something is not lost to students in this transaction, and so lost to the university in performance of its vocation. Will this ceding to science of all the territory it claims, by teachers and their students, ultimately serve the cause of science or religion? Might not the university be just as well served by bringing beliefs in miracle or revelation—in the complex forms in which religious intellectuals generally maintain such beliefs—to the tables of classroom inquiry and discussion? And is religion not in need of the critiques to which it can best be subjected by direct encounter between theologian-teachers who advocate religion and university students who hold and articulate very different presuppositions of fact and value? Why not bring such challenges into the classroom, the better to present each side with the facts “inconvenient” to its party opinion? In order to explore these issues, I shall turn to two American Jewish thinkers who differed from each other as much as from Weber on the point of theology’s role in the university. Abraham Joshua Heschel (1907–1972) will help us clarify what is at stake in Weber’s exclusion of theology from scholarship, while Mordecai M. Kaplan (1881–1984) will serve to question Weber’s exclusion of theology from the classroom. Both, in the end, tend to strengthen Weber’s case as much as to weaken it.

PROPHECY AND THE SCHOLARLY VOCATION29 Heschel’s most relevant contributions to our subject, I believe, came in his treatment of the biblical prophets, first in his doctoral dissertation on the subject, submitted to the University of Berlin in the 1930s, and then in the reworked volume published in English in 1962. His work on the prophets has been the subject of ample analysis, and I shall not examine it here in any detail.30 Nor will I attempt to make the case, which I have argued elsewhere, that Heschel’s understanding of the prophets is crucial for the understanding of his own most decisive choices as a Jewish theologian and social activist.31 My focus will be several aspects of Heschel’s analysis that probe the relation between the vocations of science and of prophecy. Heschel was convinced, as against Weber, that the two—in his case at least—did not conflict. His first key move in analyzing the prophets was to concentrate not on the specifics of prophetic messages, which he conceded varied from prophet to prophet, but on the character of prophetic consciousness. The latter, Heschel argued, was a constant of biblical prophecy and, to a degree, has featured in all mystical experience of whatever tradition. Heschel sought to employ the method of verstehen, and a version of phenomenology, to

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understand scientifically “what it means to think, feel, respond, and act as a prophet.” Being a prophet, Heschel explains, means seeing the world as God sees it—”exegesis of existence from a divine perspective.” The prophet not only possesses and transmits insight into God’s thought and will but develops “sympathy” for God’s “pathos”—in particular, feeling God’s pain at the suffering of God’s creatures. For the God revealed to and by the prophets is not impersonal or detached. God cares passionately about the world. The biblical prophets intuited that concern and communicated it to the people Israel.32 Heschel in turn sought to communicate it to his own readers, centuries after the fact, through scholarship. Heschel’s dissertation supervisors were not convinced by his claim to have bracketed the question of whether the claim of the prophets to revelation was true,33 and Heschel himself later abandoned the claim. “I have long since become wary of impartiality, which is itself a way of being partial,” he wrote in 1962. The prophets were rather engaged in a “ceaseless shattering of indifference.”34 But Heschel did not give up the belief that prophecy was a fact, an event transpiring between human individuals and God, rather than mere subjective experience. Piety, he wrote in a 1942 essay (for these purposes Heschel did not distinguish piety from prophetic experience except in degree), “is as independent of the psychical chain of causation as the acceptance of the Pythagorean theorem is independent of the individual temper.” The “spiritual objective content” of the experience is universal, and factual, as opposed to the “subjective psychical function.”35 Experience of God is in principle available to all. His disagreement with Weber is obviously profound. On another matter, however, the relationship between their approaches is less straightforward. The place to study religion, Heschel argued, is at the site where it happens with greatest force and to greatest effect. “Religion should be studied in its natural habitat of faith and piety, in a soul where the divine is within reach of all its thoughts . . . compellingly present and overwhelmingly close.”36 The focus, in Weber’s terms, should be the religious virtuoso. Surveys of representative samples, or phenomenologies of everyday religion, would in Heschel’s view not do. “Vacancy of experience,” he wrote caustically, “cannot be compensated for by lack of bias.”37 The same held true, however, for the researcher. Scholars of religion should have direct access to what they were studying. How else perform exegesis of prophetic “exegesis of existence?” Ideally, I read Heschel to be saying, the scholar would be a prophet: one able to see the world simultaneously from both a human and a divine point of view, to have sympathy for the divine pathos. Cognitive and experiential prerequisites were required. Heschel devoted a scholarly essay to investigation into Maimonides’ verdict on his own prophetic attainments, and cautiously concluded that Maimonides believed he was a prophet in the Maimonidean sense.38 We

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have reason to conclude, I think, that Heschel believed himself a prophet in the Heschelian sense, at least to some degree. Without that attainment he would not have believed himself capable of scholarly inquiry into the consciousness of the prophet. Heschel went beyond Weber’s requirement that the scholar of religion be religiously musical: not tone-deaf, able to carry a tune and so recognize a good one. He demanded a degree of virtuosity in the scholar as well as the object of scholarship. A religious scholar of religion would produce a different sort of scholarship. Heschel knew from experience, and believed he could demonstrate in his scholarship, that “in mystical contemplation all things are seen as one.” His experience of the world was not limited to the empirically observable. Nor, therefore, was his scholarship. His choices as a scholar, and his view of the vocation and the limits of scholarship, both derived in part from his convictions—the opposite of Weber’s—concerning God’s role in the world and our access to knowledge about that role. As opposed to Weberian practitioners of wissenschaft, he would not use “explanations and opinions [as] a token of wonder’s departure.”39 Rather he sought to use his wissenschaftlich study of prophecy to revive and sustain wonder in himself and his readers. This new vocation—similar to Mircea Eliade’s “history of religions” in this respect at least—would enable modern readers of the prophetic word to open themselves to the wonder that had struck the prophets.40 They might then, as Heschel put it in Man is Not Alone (1951), be able to “tell it to their minds.”41 Religious scholarship of this sort might also lead its readers to change their lives, in the direction of political and social activism, as Heschel’s own life had been changed on his account by studying the prophets. Lacking all claims to prophetic experience, I cannot judge Heschel’s account of it, and of course would be unable, even with the benefit of mystical experience, to know for certain whether all other mystics had had the same experience despite differences in biography, language, and culture. Heschel’s attempts to argue the facticity of revelation in works such as God in Search of Man (1954) are inevitably circular.42 His evocative treatments of the prophets, as Jon Levenson has pointed out, are often at odds with recent biblical scholarship and miss a great deal of what is distinctive to individual prophets by failing to note differences of “consciousness” within and among prophets as well as similarities to various strands of other biblical books.43 However, these criticisms do not seem to me to vitiate the value of religious scholarship in religion but only to underline the need, in this case as in all others, for correction by other scholars. Heschel’s evidence can be contested or reinforced, his readings can be disputed, the effects of his presuppositions can be exposed. I see no opening here for categorical judgment on the venerable questions of whether religious faith qualifies or disqualifies research into one’s own or other religions, or whether faith assists or precludes understanding of the the-

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ology of one’s own or another tradition. I am not sure, after twenty-five years of research into religion, whether—as I suspect—fervent atheism such as Weber’s serves the cause of religious scholarship better than existential indifference to the validity of the truth-claims under investigation. Weber certainly never made disinterest a prerequisite of scholarship. Quite the opposite. I wonder how one could approach the study of Heschel, say, or Barth, or Durkheim’s totemists, without the conviction that their beliefs about divine revelation, or their political commitments, or their commitments to ritual performances, are at the least plausible (i.e., the sort of belief an intelligent human being in a particular culture might conceivably hold, or the sort of thing a thoughtful human being in the relevant circumstances might conceivably do). The relation between understanding religion and believing, then, remains after review of Weber’s scholarship, and of Heschel’s, a difficult matter.44 There are fine scholars of religion who are believers, and others of equal merit who are not. Scholars of each sort have drawn usefully on the work of scholars of the other sort. One can legitimately study a particular brand of theology in the university—say, Maimonides’ interpretation of prophecy—precisely because a great deal of that theology’s meaning, and so a great deal of knowledge about it, is available to anyone who takes the trouble to learn what Maimonides knew and so comes, imaginatively at least, to see the world as Maimonides did. Understanding of his “religious experience” from inside another religious experience is helpful, surely, but perhaps no more so than knowledge of medieval Islamic science and metaphysics. Religious experience of one sort might actually block appreciation of experience of a very different sort—or lead one mistakenly to assume that the two were similar. Schools of theology, then, might well belong in the university if, while denying ultimate value-neutrality, they nonetheless honor other canons of research. Indeed, they might well perform this duty more faithfully, be more open to exposure and critique of presuppositions than, say, a School of Business. My point, once again, is cautionary. The issue is not particularly well addressed in terms of objectivity versus subjectivity, value-neutrality versus passion, presuppositions of one sort as opposed to presuppositions of a different sort. Weber’s case for the blanket exclusion of theology from the realm of scholarship seems inadequate, even when judged against the scholarly failings of a figure like Heschel, who was far more effective as a theologian and prophetically inspired social activist than as a scholar. What, then, of Weber’s case for theology’s exclusion from the classroom?

RELIGIOUS EDUCATION FOR RELIGIOUS DEMOCRACY Mordecai Kaplan is of interest in this regard because he, like Weber, accorded sustained attention to the relationship among religion, politics, and

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education—and, unlike Weber, regarded education as inherently religious, precisely because it could not but teach values as well as facts. Education therefore carries the threat of significantly altering behavior. Neither education nor religion is worthy of its name in Kaplan’s view unless it induces students to act in society for the good. Neutrality is beside the point. “The aim of all education must be world improvement.” Once again, rather than rehearsing analyses of Kaplan offered elsewhere by me and others, I will focus on a single argument: the chapter in Kaplan’s book The Future of the American Jew (1948) entitled “Judaism’s Contribution to Education for Democracy.” Its presiding presence, evident in the quote above, is John Dewey, though Jewishly learned readers will also recognize other sources. Education, Kaplan writes, has a twofold aim: growth of the individual, and welfare of the community. Its job in America in the late 1940s was strengthening the democratic spirit of the American people by empowering individuals to develop their gifts and use them for the common good. Kaplan finds guidance for such education to democracy in the rabbinic treatise Pirke Avot, most notably in its conviction, as Kaplan idiosyncratically presents it, that the primary purpose of learning “must always be to qualify the Jew for such participation in life of both the Jewish and the general community as will make for a better world.”45 Jewish education must always be religious, Kaplan continues, because it deals with “the promise of a better world in the upbuilding of which all human beings must share.” The same holds true for education to democracy in America. Kaplan criticizes “the secular universities” because their students are “given skills necessary for their careers” but are not taught “how to use those skills in the service of life in general.” More strikingly still, he ridicules the notion of teaching religion in the public schools—not only because such instruction violates the separation of church and state, which Kaplan supports, but because it mistakenly assumes that the heart of religion consists in belief in God. Rather, believing in God means “sensing that there is a Power both within and beyond man which is gradually making human beings learn to live amicably with one another.” This power impels us to mutual cooperation, and convinces us that exploitation of other human beings is wrong.46 Kaplan had laid out this “god-concept” repeatedly (if never coherently) in previous works, and had urged that Jews accept it as the only scientific way to think about divinity. He now urges it on Americans as a whole. “In our day, this is the conception of God all education worthy of the name should strive to have the child acquire.” For it alone “impels us to mutual cooperation” and convinces us that exploitation of other human beings is wrong. Religious education, precisely because it is so important to society as a whole, cannot be left to parents. Their “own lives are cast in the conventional pattern in which the average person is partly exploiter and partly

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exploited.” Nor can one rely for instruction in the true faith on the various religious groups, all of which have thus far offered only “irrelevant beliefs and meaningless platitudes.” The schools, in service of the state, must take on the task.47 Kaplan, then, far from opposing facts to values, is convinced that his values are empirically demonstrable (i.e., are facts). God’s existence is fact—or, at the very least (Kaplan is not always consistent on this matter), belief in this God is entirely compatible with all we know about the world from science as well as from everyday experience. Such belief constitutes the only satisfactory way of accounting for the facts we know and for the fact of our knowing it. The rationalist is driven to believe in the existence of the forces moving the world, in and through human beings, toward greater and greater order, beauty, unity, and righteousness. The only faith required is the faith that these forces will ultimately prove victorious over the chaos, evil, and injustice that afflict the world. Kaplan makes the reasonable case that just as faith in the possibility of such victory—call it redemption—is psychologically necessary if we are to join the work of redemption, faith in the ultimate triumph of democracy is needed if citizens are to sacrifice and fight for it. That triumph too can be guaranteed only by the “Power that makes for righteousness.” Kaplan also assumes with reason that his readers, even if they have different views about God, will share his conviction in the wake of the world war against fascism that education must prepare the child for freedom. The schools, therefore, had a mission embracing both facts and values, indeed melding the two. Classroom learning had to free the child from the lure of the mob by helping him or her “exercise to the full the power of reason.”48 Convinced of the factual basis and functional necessity of his own values, and sure of the consensual character of those values in postwar America, Kaplan insisted that inculcation in those values, rather than in facts alone, had to be the mission of public schools and universities alike. Like many university professors, he insisted on freedom of inquiry so that students, experiencing the fact of that freedom, would be induced to make it a thoroughgoing value. But he also urged professors to profess in the other sense as well, accusing those who did not—assuming their value-facts were his—of dereliction of educational duty. Universities today are of course happy with the “second-order” value of free inquiry, and the courts are happy to have democracy advocated in the classroom, rejecting claims—with which Kaplan would have wholeheartedly agreed—that such advocacy of democracy in fact constitutes a religion.49 “Democracy is a faith,” he wrote, “its validity is not scientifically demonstrable. It demands a priori acceptance of ideals which can be proved valid only by our committing ourselves to their realization.” But Kaplan went farther. Democacy, he wrote, “is a scheme of salvation that implies

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belief in a Power that makes for salvation.”50 That is why Kaplan applauded the “religionizing” of the modern state, by which he meant the state’s assertion (for example in the Declaration of Independence) of “the sacredness of the human soul and its dignity, as a responsible creative moral agent.”51 “The religion of ethical nationhood” should be distinguished from “the abuses of national religion” (i.e., fascism). The existence of unworthy forms of religion did not mean that Kaplan’s sort of religion is not factually true, or that it is not a value worthy of loyalty. I find Kaplan’s ruminations useful for considering the issue before us— the role of theology in the classroom—because Kaplan was at once aware of the difficulties involved in his point of view and blind to their severity.52 Had he advocated a more traditional sort of religious belief—say, Christian fundamentalism—and urged that all teachers endorse it, partisans of liberal education and the Weberian university would simply dismiss him out of hand. But Kaplan’s “god-concept” is alluringly vague, and putatively “scientific”; moreover, the “religion of democracy” that he urged on us half a century ago still enjoys widespread support. All the more reason, then, to note its danger. Kaplan’s discussion, in my view, serves to highlight two of Weber’s main concerns. First, Kaplan’s confusions of fact and value drive home the Weberian recognition that although teaching is, like scholarship, inevitably personal—directed by values and serving passions; fact and value are inevitably “entangled”—there is a kind of intellectual carelessness or duplicity involved in the failure or refusal of a teacher to distinguish between facts and values. The wide appeal of Kaplan’s non-supernatural religion notwithstanding, his insistence that the very purpose of a good teacher in the classroom should be to persuade students of the validity of his or her own values—not least the value of not distinguishing fact from value!—arouses justified hesitations. One cannot imagine Kaplan, who maintained every one of his many shifting opinions dogmatically, presenting his students with “inconvenient facts” that would problematize his personal commitments as much as theirs. Kaplan well illustrates the danger that Weber feared from the advocacy of any theology in the classroom. That danger may lie less in crude indoctrination in the faith than in sophisticated argument for the faith—or in the seemingly innocuous denial that any faith whatever is at issue, but only “facts” or valid inferences from them. The simple dichotomy of subjectivity versus objectivity, fact or value, does not serve us with regard to teaching any more than it did regarding research. It should be abandoned. But Kaplan’s example reminds us of the valid and important concern to distinguish (a) teaching that inevitably and complexly conveys “value” in its examination and analysis of “fact” or “value” or their “entanglement,” from (b) teaching that aims at persuading students that there is one and only one correct

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way to see the world ethically and metaphysically, even if that way happens to be theirs or ours as well. None of which suggests, of course, that an individual theologian, teaching in an undergraduate or graduate university classroom, will necessarily be incapable of mustering the critical judgment that Weber rightly requires, any more than we could rule out the religious scholar from legitimate practice of Religionswissenschaft. Weber would, I think, have assented to this distinction, though it is not one he made explicit. Kaplan might not have been up to the task of presenting facts inconvenient to his values, but other theologians might well have succeeded at it. His example, however, does reinforce the view that any theologian—or school of theology—whose avowed mission it is to strengthen the faithful in their faith and convert unbelievers to that faith does not belong in the undergraduate classroom, any more than a proponent of this or that political view belongs in the politics classroom. This argument of course rests on an ethical claim: that students are ill-served in their development as autonomous human beings (this aim too is a value, needless to say) if one inhibits the freedom of their thinking by using the authority and power of the teaching office (professors give grades) to impose one’s own point of view. To this degree Weber’s strictures are well-taken. If I am right, however, the point is not to exclude theologians from the undergraduate classroom, or to exclude schools of theology from the university, but to clearly demarcate the latter as a different sort of educational space, marked off as one that aims not merely to educate but to save. Kaplan believed the only reasonable modern meaning of “salvation” was “self-fulfillment,” saw this as proper (even mandatory) educational objective, and proudly set out to save his students. Some college teachers act in a similar manner, from similar motives, though they operate with varying notions of salvation. My argument, following Weber’s, has been that there is a place for such teachers in the university—but that place is not the undergraduate classroom. It is the theological school. Here I of course diverge once again from Weber, for reasons similar to those articulated by Barth. I conclude, then, with several reflections on the proper role of theology within the university, and the ways in which that role mirrors the place of religion in the society that the university is meant to serve.

THEOLOGY, RELIGION, AND THE VOCATION OF THE UNIVERSITY Barth’s argument concerning the status of theology as a science comes in the introduction to his multivolume theological system, Church Dogmatics. The argument is too complex for summary here. Suffice it to say that Barth posits

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theology as a discipline that claims a rightful place in the modern university, but always at the margins of science or scholarship as the latter is predominantly defined and practiced, and so at the periphery of the university itself. For theology is committed to ultimate ends that the university on its own terms cannot understand or encompass. Theology would be superfluous, Barth writes, were the various academic disciplines (e.g. philosophy, history, sociology, and psychology), to “take up the task of measuring the Church’s talk about God by its being as the Church” (i.e., to subordinate themselves to the service of God and the clarification of God’s word). Were the sciences religious, theology would not be needed. In fact, however, the sciences stand outside and over against religion, and so have succeeded in “increasing the self-alienation of the Church and the distortion and confusion of its talk about God.” Note the irony: theology cannot escape this distortion and confusion without the help of the sciences, which, if they understood the real truth of the matter, might themselves “ultimately be theology.” The very existence of theology as a separate and alien domain is thus an “emergency measure on which the Church has had to resolve in view of the actual refusal of the other sciences in this respect.”53 Theology very much requires these other sciences, even in their present secular orientation, in order to perform its task adequately. They provide truths about the world to which it must bring its truth. Indeed, the existence of other sciences, and the praiseworthy fidelity with which many of them at least pursue their own axioms and methods, can and must remind it that it must pursue its own task in due order and with the same fidelity. But it cannot allow itself to be told by them what this means concretely in its case. As regards method, it has nothing to learn from them. In sum, Barth concludes, theology on the one hand recognizes its solidarity with other expressions of the human concern for truth, even as on the other hand it must “protest against a general concept of science which is admittedly pagan.”54 This, Barth argues, is precisely the contribution that theology makes to the university, one which it could not make were it not allied to the other sciences, committed to encounter with them and drawing wherever possible on them, but also could not make if it were not opposed in principle and in practice to the ultimate presuppositions of those sciences. Theology alone among the disciplines of the university can mount this challenge, proclaiming as it were a “fact” of supreme inconvenience for the “party opinions” that form the basis of the modern university. It takes on the prophetic role of speaking truth to power in the liberal academy more radically than any Marxist. The sciences might not appreciate this role. Their practitioners may prefer to silence or exclude theology’s challenges. This is only to be expected. Prophets who criticize their fellows in the name of higher authority are rarely popular figures. Barth understands the role of theology in the modern university to be directly analogous to the role of the

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church that proclaims the gospel in secular society. He assumed that role courageously in the 1934 Barmen Declaration, a clear assertion in the face of Nazism that theology may not be subordinated to any secular program and that theological commitments must determine the church’s political stance in the world.55 I want to probe this analogy with the help the preeminent Orthodox thinker in late twentieth-century America, Rabbi Joseph Soloveitchik, whose view regarding the Jewish “man of faith” in contemporary America was very similar to (and perhaps influenced by) Barth’s vision of the contemporary Christian. “The Lonely Man of Faith”(1965), working off of a midrash on the two creation stories in Genesis, argues that God created human beings with a dual nature. One “Adam” in us craves majesty, order, control—and achieves or expresses these through mathematics, the sciences, rational improvement of the world, utilitarian community, and even rationalist religion. The other Adam seeks relationship, love, covenant—and achieves or expresses these through binding connections such as marriages, friendships, communities of faith, and passionate relationship to a personal God. In the modern world, Soloveitchik contends, the first tendency has so gained in power that the second has nearly been routed from culture, society, and individual consciousness. The modern “man of faith” is as a result doubly lonely: unable as always to communicate his most intimate relationship to others (a permanent state of affairs, a given of religious experience, which leads Soloveitchik to doubt the value of interfaith dialogue), and particularly unable in a secular world to make his commitments credible, even to the other Adam inside himself. For Jews, possessed of and by a minority faith, the loneliness is further exacerbated. And so, Soloveitchik writes poignantly, It is here that the dialogue between the man of faith and the man of culture comes to an end. Modern Adam the second, as soon as he finishes translating religion into the cultural vernacular and begins to talk the ‘foreign’ language of faith, finds himself lonely, forsaken, misunderstood, at times even ridiculed by Adam the first—be he an outsider, be he himself.56

This passage seems to me—on the basis of comparative study of religion, research into the views of other Jewish thinkers, and personal experience—to be both profoundly true and patently false. On the one hand, interfaith dialogue has been endorsed and practiced by Jewish thinkers of great stature. Heschel, no stranger to either Adam I or Adam II, embraced interfaith encounter. God is one, he maintained, even if we are not, and the access to God afforded by reason or experience is shared by people of different faiths. Jews and Christians can and should talk about faith with one another. They can convey something of that knowledge to people who are not among the faithful.57 (Kaplan, paradoxically, seems to have had little interest in or

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understanding of the world’s various religions—a far more traditional Jewish stance.) Soloveitchik, convinced he could not communicate his faith to Christians, nonetheless quoted extensively from thinkers such as Barth and Kierkegaard. In short: interfaith conversation is possible. It occurs all the time, inside and outside the university. On the other hand, Soloveitchik seems on target in his conviction that religious belief cannot entirely be “translated” satisfactorily into the terms of a secular culture, and so must remain to a degree on the margins of that culture. Oddly enough, Soloveitchik’s description of the limits to dialogue between theology and the secular world finds eerie parallel in a well-known verdict by a secular critic of religion. Near the conclusion of The Philosophical Discourse of Modernity, Jürgen Habermas writes that communicative reason, that which should bring us together in public discourse despite a diversity of communities and “life-worlds,” must be “disburdened of all religious and metaphysical mortgages.”58 “Habermas seems not only to exclude religion from the public square,” one critic notes, “but to exclude religion from the communicatively rationalized private sphere; religion, insofar as it is to be public, is subordinated to and bound to comply with standards of truth and righteousness derived through [enlightenment] discourses.”59 David Tracy writes that, unless Habermas offers arguments against sophisticated religious positions rather than merely assuming their irrelevance, “modern theologians and philosophers will remain unpersuaded” by his comments on “the validity claims of religion and philosophy.”60 Jeffrey Stout has recently set forth a cogent and persuasive critique of similar attempts by John Rawls and Richard Rorty to exclude faith-based normative claims from public debate on the grounds that, as Rorty put it, religion is a “conversation-stopper.”61 It is here that Weber’s discussion of the role of theology in the university proves useful in understanding the proper place of religion in society as a whole. Whether or not religion can legitimately speak and effectively be heard in the public square, we might say, depends on who is speaking and hearing, what is being said, and—perhaps most important of all—how it is said. Let’s begin with the how. Religions in America have for at least two centuries trained themselves in modes of thinking, acting, and believing that suit Kaplan’s aim of encouraging democracy. Jewish discourse on the chosen people idea, endlessly debated and modified over the past century in America, is a case in point.62 Islam is now being asked to take a speeded-up, intensive course in the subject of religious speech and practice in America. Advocates of pluralism and multiculturalism have long urged Americans to undertake a parallel effort in broadening the range and diversity of what is seen and heard in the public square—Muslim veils, Hasidic attire, the name of God, belief in the devil. On the opposite side of the debate, some advocates of liberal individualism continue to insist that there is no room

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at all in the public square (or perhaps even in private!) for religious beliefs and behavior that curb autonomy and inculcate intolerance.63 It should not need arguing, after the religious motivations of the founders, Lincoln’s second inaugural address, and the civil rights movement of the 1950s–1960s, that America is enriched by religious additions to its public culture and debate. One shudders to contemplate what late twentiethcentury America might have looked like without the impact of Martin Luther King. I shudder to think what late twentieth-century American Judaism would have been like without the impact of Abraham Joshua Heschel, who convincingly and authentically translated his tradition’s prophetic teachings concerning social justice to his country’s social and political agenda. Religious voices in the current argument over stem-cell research, to cite only one example, make an invaluable contribution precisely because they introduce considerations unavailable to secular ethicists but highly relevant to the issue at hand (and extremely important to citizens of faith). A society without such voices, like a university lacking the presence of theology, would be a quieter but less interesting place. The public square would likely be more peaceful for lack of religious argument on contentious issues such as abortion and capital punishment. Prophets always exact a price in peace and quiet. But both spaces, as Barth asserts, societal and academic, would be impoverished were the religious commitments that in part animate the overwhelming majority of Americans—the ways they understand the goods our state serve and preserves—ruled inadmissible in the halls of the academy or the councils of public debate.64 Corporations, of course, take no such vows of abstinence when it comes to influencing minds and behavior. Besides, as Stout argues, “all democratic citizens should feel free . . . to express whatever premises actually serve as reasons for their claims.”65 There is no way to stop believers from doing so in any case without violating the Constitution, and the believers, according to their own convictions, dare not be silent—for God’s word sometimes demands speech and action which, if not taken, render the believer complicit in the evil that God’s word condemns. One does not want theology advocated in the classroom (i.e., where the teacher wields power over the students, can reward or punish their assent with the opinions delivered from the lectern, and has the ability to silence opposing points of view, whether overtly or indirectly). Analogously, one wants to enforce the establishment clause rigorously, thereby preventing a religion from imposing its point of view on the citizenry with the assistance of state power and influence. (The virtue of the analogy is strengthened by the fact that vigilance on this score seems to be exercised most of all in the classrooms of the public schools.) But one certainly does want “religious studies” in society. Citizens should be able to know and understand religious ways of seeing the world and of judging the issues on the current

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agenda. Those viewpoints will not be heard unless religious institutions and individuals put them forward. The seminaries thus play a role beyond the academy no less important than the one they play within it. Only they have sufficient stake in the matter, the ability to achieve the “volume” necessary to be heard above the din of competing messages, and the intellectual and economic resources needed to train individuals informed enough in both their own traditions and those of the society at large to present religious views in a manner that is learned enough to be authentic and sophisticated enough to be worthy of a careful hearing by citizens of differing commitments. It could happen that the equivalent of a “religious studies” professor would possess these qualifications (i.e., someone who, though not personally committed to a particular faith, understands it well enough to articulate its position or viewpoint convincingly). In most cases, however, a theologian will be needed to do the job (i.e., a learned representative of a particular faith-tradition, trained by its schools for precisely this task). Indeed, the theologian can perform the task adequately only if he or she understands the “science” involved—biology, say, or economics—which in turn argues for the virtue of theological schools located in universities where these sciences are researched and taught. Our encounter with Weber suggests, once again, that instead of blanket dismissals of religion from the public square or theology from the university, one should judge matters on a case-by-case basis. We should not follow the example of Weber’s lapses into overgeneralization about “religion,” but that of Weber at his best: when he charted the interpretations given particular religions by particular actors or sets of actors in particular circumstances with particular (and often unintended) consequences. Likewise, we should also avoid imposing categories elicited from one tradition, or applied to one set of its representatives, on others to whom these categories and judgments are not appropriate. In violation of these strictures, opponents of a particular religious thinker or denomination often become opponents of religion in general. Or, assuming that all religions are the same in “essence” if not in form, adherents of one religion or denomination are often moved to defend religion as such. Specificity would serve much better, for adherents and critics alike. Weber’s analysis consistently fails when it reaches beyond the variations that he himself has taken such pains to delineate. So does everyone else’s. Weber’s argument for the dismissal of theology fails, finally, because he stipulates rather than argues the presuppositions that he brings to his argument about presuppositions. He never pauses to make the case for complete value-relativism, for example. It does not follow from the fact that people worship many different “gods” that atheism or agnosticism is the only logical course. Soloveitchik never argues the mutual incommunicability of religious claims. Habermas assumes rather than argues the inability of

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religious believers to take part in public, rational discourse. Rorty, as Stout points out, never really tries to convince us that religion is a “conversationstopper.”66 Religion and theology are valuable not least because they force society and the university respectively to articulate the reasons for their liberal commitments. Science too often remains, as Wolf put it, merely the “characteristic attitude of our time.” The world is too often assumed to be what Weber so authoritatively declared it: “disenchanted.” Need one add that theology from its side requires the university, and religions require the diverse and competing commitments of the larger society, religious and secular, lest they slip into lazy avowals bereft of reasoned arguments? The point on all sides, it seems to me, is to reap the benefits of hearing theology’s legitimate voice in public debate without suffering the foreclosure of thought and debate that tends to come when opinion of any sort is merely presumed or imposed rather than argued. Religions should be denied sole power or authority to shape debate and policy (as in the undergraduate classroom) but we should welcome their contributions to debate and their attempt to influence policy (as theologians do in scholarly research, or through the presence in the university of academic schools of theology). King and Heschel, Barth and Kaplan and Soloveitchik, had much to say to nonbelievers and to believers of other traditions, despite and because of the fact that their arguments were based in part on readings of scripture they deemed holy and recall of experiences they deemed divine. In the end, I want to remain a professor of religion in both senses of the term—in part because I nurture Zunz’s hope that “the complex problem of the fate of the Jews”—and much else too, “may derive a solution, if only in part,” from the world’s religions and the scholarly study of them. But I am also driven, I confess, by the failings evident in Weber’s conclusion to his essay on the scholarly vocation. He cites “the beautiful Edomite watchman’s song of the period of exile that has been included among Isaiah’s oracles, ‘The morning cometh, and also the night; if ye will enquire, enquire ye: return, come.’” Weber then remarks that the people to whom this was said (i.e., the Jews) “had enquired and tarried for more than two millennia, and we are shaken when we realize its fate. From this we want to draw the lesson that nothing is gained by yearning and tarrying alone, and we shall act differently. We shall set to work and meet the ‘demands of the day,’ in human relations as well as in our vocation.”67 I disagree with this simplistic account of Jewish history as mere waiting, passively, without agency, outside of history (a Zionist reading which, incidentally, was shared by no less distinguished a Jewish historian than Gershom Scholem).68 But I have no less a problem with what follows: the astonishing claim, at the close of an essay overflowing with irony and complexity, that meeting the demands of the day in society and vocation “is plain and simple, if each

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finds and obeys the demon who holds the fibers of his very life (der seines Lebens Faden halt).”69 We need more as individuals and societies than recourse to demons who hold the very fibers of our lives. We deserve more from public debate than claims to answers that are “plain and simple if only,” whatever the “if only” may entail. Vigorous argument over facts and values and their “entanglement” is of the essence of what will serve us. The more “inconvenient facts”—and values—that can be argued—whether for religious or secular “party opinion,” for left or right, or for one or another version of the conversation that we need to have as a society about the communities we hope to build—the better.

NOTES 1. Immanuel Wolf, “On the Concept of a Science of Judaism” (1822), in The Jew in the Modern World, eds. Paul Mendes-Flohr and Jehuda Reinharz (New York: Oxford University Press, 1995), 220. 2. Leopold Zunz, “On Rabbinic Literature” (1818), in Mendes-Flohr and Reinharz, Jew in the Modern World, 222. 3. Karl Barth, Church Dogmatics, vol. 1, part 1: The Doctrine of the Word of God, eds. G. W. Bromiley and Thomas Torrance, trans. G. W. Bromiley, 2nd ed. (Edinburgh, Scotland: T. & T. Clark, 1975 [orig. German ed., 1936]), 1–11. My reading of Barth is indebted to a senior essay prepared by David Albertson, “The Question Mark of Theology: Karl Barth’s Scientific Theology as Theological Critique of the University,” submitted to the Department of Religious Studies, Stanford University, May 2000. 4. Max Weber, “Science as a Vocation,” in From Max Weber, eds. Hans H. Gerth and C. Wright Mills (New York: Oxford University Press, 1969), 129–56. I have also consulted the new translation in Max Weber’s “Science as a Vocation,” eds. Peter Lassman and Irving Velody (London: Unwin Hyman, 1989), 3–31. The German original, “Wissenschaft als Beruf,” is most conveniently available in Max Weber, Gesammelte Aufsatze zur Wissenschaftslehre (Tubingen: J. C. B. Mohr [Paul Siebeck], 1988), 582–613. 5. Weber, “Science as a Vocation,” 138. 6. Weber, “Science as a Vocation,” 132, 134–36. 7. Weber, “Science as a Vocation,” 138–39. 8. Weber, “Science as a Vocation,” 143. On these issues see Scott Lash and Sam Whimster, eds., Max Weber, Rationality and Modernity (London: Allen and Unwin, 1987). 9. Weber, “Science as a Vocation,” 146–47 10. Weber, “Science as a Vocation,” 148. 11. Weber, “Science as a Vocation,” 148. 12. Weber, “Science as a Vocation,” 138, 142. 13. Weber, “Science as a Vocation,” 153; Weber, “Wissenschaft als Beruf,” 610: “Aber wie stellt man sich dann zu der Tatsache der Existenz der ‘Theologie’ und ihres Anspruchs darauf: ‘Wissenschaft’ zu sein?”

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14. Weber, “Science as a Vocation,” 153–54. 15. Weber, “Science as a Vocation,” 154. 16. Weber, “Science as a Vocation,” 147. 17. Weber, “Science as a Vocation,” 142–43. 18. Weber, “Science as a Vocation,” 154–55. 19. For a recent and extremely lucid treatment of these issues see Hilary Putnam, The Collapse of the Fact/Value Dichotomy (Cambridge, Mass.: Harvard University Press, 2002). Weber seems to me to recognize what Putnam calls the “entanglement of fact and value,” despite his attempt to exclude the latter from the university classroom. The present discussion might well be construed as an attempt to answer, with reference to Weber, Putnam’s question (43–45) “Why Are We Tempted by the Fact/Value Dichotomy?” 20. Max Weber, “Religious Rejections of the World and their Directions,” in Gerth and Mills, eds., From Max Weber, 323–59. 21. Max Weber, “Politics as a Vocation,” in From Max Weber, 78–79; Max Weber, Economy and Society, eds. Guenther Roth and Claus Wittich (Berkeley and Los Angeles: University of California Press, 1978), 4, 22–26. 22. See for example Wolfgang Mommsen, “Personal Conduct and Societal Change: Towards a Reconstruction of Max Weber’s Concept of History,” trans. Rainhild Wells, in Max Weber, Rationality and Modernity, 35–51. 23. On the relation—stated at the conclusion of the Protestant Ethic—between Puritan ideas of the calling and Weberian ideas of rationality, see Arnold Eisen, “Called to Order: The Role of the Puritan Berufsmensch in Weberian Sociology,” in Critical Assessments of Max Weber, ed. Peter Hamilton (London: Routledge, 1991), 101–16. 24. Weber, “Science as a Vocation,” 135–36, 143–46 25. See Arnold Eisen, “The Meanings and Confusions of Weberian Rationality,” British Journal of Sociology 29, no. 1 (March 1978): 61–67; Herbert Marcuse, “Industrialization and ‘Capitalism,’” in Max Weber and Sociology Today, ed. Otto Stammer, trans. Kathleen Morris (Oxford: Basil Blackwell, 1971), 133–52, 184–86; and Steven Kalberg, “Max Weber’s Types of Rationality,” American Journal of Sociology 85, no. 5 (1980): 1145–80. 26. Weber, “Science as a Vocation,” 146–47, 151–52. 27. Weber, “Science as a Vocation,” 146–47. 28. Max Weber, The Protestant Ethic and the Spirit of Capitalism, trans. Talcott Parsons (New York: Charles Scribner’s Sons, 1958), 90. Similarly, the Sociology of Religion finds its place in Economy and Society in the context of probing issues of political legitimacy. Ancient Judaism focuses on the politics and economy of an exclusivist “pariah people,” and The Religion of China focuses on similar matters. 29. This section draws upon a presentation at a conference on Heschel held at the Jewish Theological Seminary in March 1998, as well as upon Eliezer Schweid’s article, cited in note 30 below, which expands on that presentation. 30. See for example Nathan Rotenstreich, “On Prophetic Consciousness,” in Journal of Religion 54:3 (July 1974), 185; Eliezer Schweid, “The Philosopher as Prophet of Prophecy: The Relation between Philosophy and Religion in the thought of Abraham Joshua Heschel,” in Prophets to their People and to Humanity: Prophecy and Prophets in 20th-Century Jewish Thought (Jerusalem: Magnes Press of the Hebrew University, 1999), 234–54 (Hebrew).

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31. See Arnold Eisen, “Prophecy as a Vocation: New Perspectives on the Thought and Practice of Rabbi Abraham Joshua Heschel,” forthcoming [in Hebrew] in a festschrift honoring Eliezer Schweid. 32. Abraham Joshua Heschel, The Prophets (Philadelphia: Jewish Publication Society, 1962), xv–xvi, 221–31, 307–323. Heschel’s dissertation was published as Die Prophetie in Krakow by the Polish Academy of Arts and Sciences in 1936. 33. The remark of Heschel’s dissertation supervisor, Alfred Bertholet, is quoted in Edward K. Kaplan and Samuel H. Dresner, Abraham Joshua Heschel: Prophetic Witness (New Haven, Conn.: Yale University Press, 1988), 170. 34. Heschel, Prophets, p. xvi. 35. Abraham Heschel, “The Meaning of Piety” in Moral Grandeur and Spiritual Audacity, ed. Susannah Heschel (New York: Farrar, Straus, Giroux, 1996), 306. Note this related claim: “Prophetic revelation is primarily an event in the life of God. That is the outstanding difference between prophetic revelation and all other types of inspiration as reported by many mystics and poets.” See Abraham Joshua Heschel, “The Mystical Element in Judaism” (1949), in Heschel, Moral Grandeur, 183. 36. Abraham Joshua Heschel, “The Holy Dimension” in Heschel, Moral Grandeur, 321. 37. Heschel, “The Holy Dimension,” 318–19. 38. Abraham Joshua Heschel, “Did the Rambam Believe that He had Attained to Prophecy?” in Louis Ginzberg Jubilee Volume (New York: American Academy for Jewish Research, 1946), 159–88. See especially 159–60, 172, 186–88. See also Abraham Joshua Heschel, Maimonides: A Biography, trans. Joachim Neugroschel (New York: Farrar, Straus, Giroux, 1982), 26, 179–80, 252; See also Dresner and Kaplan, Prophetic Witness, 203–205, and Schweid, Prophets, 253–54. 39. Heschel, “Mystical Element,” 164–65. 40. Cf. Mircea Eliade, “Methodological Remarks on the Study of Religious Symbolism,” in The History of Religions: Essays in Methodology, eds. Mircea Eliade and Joseph M. Kitagawa (Chicago: University of Chicago Press, 1959), 86–107. 41. Abraham Joshua Heschel, Man is Not Alone (New York: Farrar Straus, 1951), 71. 42. See Arnold Eisen, “Re-reading Heschel on the Commandments,” Modern Judaism, 9:1 (February 1989), 1–33. 43. Jon Levenson, “The Contradictions of A. J. Heschel,” Commentary Magazine, 106 (July 1998), 34–38. 44. Cf. the classic essay by Alisdair MacIntyre, “Is Understanding Religion Compatible with Believing?” in Bryan Wilson, ed., Rationality (New York: Harper Torchbooks, 1970), 62–77. 45. Mordecai M. Kaplan, The Future of the American Jew (New York: The Reconstructionist Press, 1967 [orig. 1948]), 489. 46. Kaplan, The Future of the American Jew, 495–96. 47. Kaplan, The Future of the American Jew, 495–96. 48. Kaplan, The Future of the American Jew, 501. 49. See the analysis of the Mozert vs. Hawkins County decision in Nomi Maya Stolzenberg, “‘He Drew a Circle that Shut me Out’: Assimilation, Indoctrination and the Paradox of Liberal Education,” Harvard Law Review, 101 (1993), 581. 50. Kaplan, Future of the American Jew, 511.

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51. Kaplan, Future of the American Jew, 517–18. 52. Kaplan notes only that the Christian Church, expressing the religion of the great majority in America, needs to “make its own program of salvation relevant to the secular interest of men,” that is, to “endorse and encourage the emergence of an American religion, with democracy as its way of salvation,” in the way that Kaplan had prescribed. Judaism needed to do the same, though its impact would be less. If the religions failed to act in this manner, “democracy is in danger.” Kaplan, Future of the American Jew, 521–22. 53. Barth, Church Dogmatics, vol. 1, part 1, 5–7. 54. Barth, Church Dogmatics, vol. 1, part 1, 11. 55. Cf. Jeffrey Stout, Democracy and Tradition (Princeton: Princeton University Press, 2004), 108. On Barmen, see Rasmussen’s chapter in this volume. 56. Joseph Soloveitchik, The Lonely Man of Faith (New York: Doubleday, 1992 [orig. 1965]), 106. 57. Abraham Joshua Heschel, “No Religion is an Island,” in Moral Grandeur, 235–50. On this matter see also David Novak, Jewish Christian Dialogue: A Jewish Justification (New York: Oxford University Press, 1989). 58. Jürgen Habermas, The Philosophical Discourse of Modernity, trans. Frederick Lawrence (Cambridge, Mass.: MIT University Press, 1991), 315–16. 59. Thomas Walsh, “Religion, Politics, and Life Worlds: Jürgen Habermas and Richard John Neuhaus,” in Secularization and Fundamentalism Reconsidered, Religion and the Political Order, vol. 3, eds. Jeffrey K. Hadden and Anson Shupe (New York: Paragon House, 1989), 110. 60. David Tracy, “Theology, Critical Social Theory, and the Public Realm,” in Habermas, Modernity and Public Theology, eds. Don S. Browning and Francis Schüssler Fiorenza (New York: Crossroad Press, 1992), 36. 61. See Stout, Democracy and Tradition, especially 8–10, 86–89, 96, as well as the chapters by Goodman and Sangay in this volume. 62. See Arnold Eisen, The Chosen People in America (Bloomington: Indiana University Press, 1983). 63. See, for example, Susan Moller Okin, et al., Is Multiculturalism Bad For Women? (Princeton: Princeton University Press, 1999). 64. For a recent statement of two points of view on the role of theology in society, see Robert Audi and Nicholas Wolterstorff, Religion in the Public Square (Lanham, Md.: Rowman and Littlefield, 1997). For a fine collection on the vocation of the university, see the issue on “What’s the University For?” The Hedgehog Review, 2, no. 3 (Fall 2000). 65. Stout, Democracy and Tradition, 10. 66. Stout, Democracy and Tradition, 86–90. 67. Weber, “Science as a Vocation,” 156. 68. See Gershom Scholem, “Toward an Understanding of The Messianic Idea in Judaism,” in The Messianic Idea in Judaism and Other Essays on Jewish Spirituality (New York: Schocken Books, 1971), 35–36. 69. Weber, “Science as a Vocation,” 156.

II THEOLOGIES OF THE MARKETPLACE

5 St. Augustine, Markets, and the Liberal Polity Elizabeth Mensch

Conventional academic debate about the role of religion in the liberal polity seems stuck, stale, and increasingly irrelevant. Neither side is wholly persuasive. For example, those who want to cloak the “naked public square”1 and our “culture of disbelief”2 with civic religiosity might recall how suffocating the so-called “sacred canopy”3 can be—as with Will Herberg’s indistinguishably Protestant/Catholic/Jewish faith of the 1950s.4 Then, the sacred canopy became simply another name for Protestant American patriotism and bland shared values, wildly incongruent to our current landscape of religious fissure and fragmentation.5 Of course those coercions of the 1950s were subtle by comparison to the coercions of Christianity’s once hegemonic authority over all of Western Europe, and to the violence that erupted when the Age of Faith disintegrated into wars of religious conflict. Christianity’s proud claim to have solved the problem of politics was forever shattered. Those who now talk politics in the name of faith have little historical warrant for boasting. Conversely, however, those who try to defend the pure secularism of the modern liberal state6 founder on their own claims to a reasoned neutrality distinct from the supposed unreason of religion,7 and are also caught in an odd paradox: most of the elements we now associate with liberalism, such as constitutionalism, democracy, individual rights, and even church/state separation itself, derive from Christian theological roots. Enlightenment liberalism tries, as it were, to slay its theological parents, or at least to closet them with the label “private.”8 Not surprisingly, the parents sometimes fight back. Moreover, religious fervor, far from politely accepting its predicted demise, now sweeps much of the world.9 Even postmodern deconstruction, expected to complete the Enlightenment project by dealing God 121

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a final, mortal blow, has become instead a “kenotics of faith”: Derrida, for example, admits he has spent his life “‘inviting, calling, promising, hoping, sighing, dreaming’” of impossible possibilities like the gift, hospitality, and the incoming of the wholly other—for which he “weeps and prays” like “teary-eyed old Augustine” himself.10 My goal is not to take sides in this debate, but just to comment on one particular aspect of the dramatic convention that seems to frame it, a convention derived from the abstracted forms of liberal discourse. That dramatic convention presupposes two spheres (or squares, depending on geometric preference), with actors inside a private sphere, religion, seeking entry through a legal boundary into the big sphere, the one that really counts—public life. The debate stays so framed even though the legal boundary separating spheres—based on the public/private distinction, the religion clauses, and Enlightenment presuppositions about the nature of the self—may seem, at least at the level of pure logic, less than wholly coherent. Running oddly parallel to the religion in public life debate is the ongoing debate about markets. This debate often follows the same dramatic convention, with the market, like religion, located within its own sphere of private freedom, set off from the public sphere of democratic decision making. When religious groups discuss markets, the conversation becomes really convoluted: religion is in one sphere debating what the public sphere should do about a somewhat alien but clearly important third sphere, the market. An obvious effect of this dramatic convention is to distance, conceptually, the sphere of religion from the sphere of markets—the two tend to address each other only as mediated by the public realm. Thus, although economists are not usually noted for their intellectual reticence, they have been strikingly reluctant to apply their methodology to religion; and many within traditional religious circles remain hesitant to discuss even the finances of their own institutions.11 That mutual unease seems evidence of a cultural barrier unexplained by specialized function and disciplinarity alone. Notably, this current spherical distancing of religion from markets is in fact but one in a series of intellectual configurations by which, over time, the Christian West has sought to conceptualize the relationship between religion and markets. Past configurations, like the current one, have all evinced an element of unease, for markets have never been comfortably reconciled to Christian aspiration: self-interested bargaining appears irredeemably antithetical to Christian agape. Nevertheless, reference specifically to two earlier conceptual models suggests that the relation between market theory and Christian theology was not always so distant as it now seems. In fact, those two particular models suggest that markets in the Christian West

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can be understood as a kind of Augustinian political choice, defensible and also contestable on explicitly theological grounds. To view markets as an Augustinian choice is to view them as a concession to the problem of human imperfectability, and thus as a deliberate rejection of Christian perfectionism. The dialectical interplay resulting from that rejection has provided an important source of energy for the generation of market theory. In order to explain the nature of that dialectic, the first part of this chapter will describe the Augustinian background to Western economic thought. The second part will then sketch (necessarily superficially) one particular effort to conceptualize the Christian role of markets, one formulated during the early part of the High Middle Ages when the church simultaneously established its independent authority throughout Western Europe and beat back some powerful challenges posed by Christian perfectionism. The third sketches (again, with necessary superficiality) a different intellectual configuration, one that emerged during the Country-Court debate in England, when theorists defended markets in response to a new form of Christian perfectionism. This Country-Court debate in turn formed an important backdrop for American constitutionalism. The conclusion will briefly consider some possible implications of an Augustinian perspective for understanding modern global markets.

PART I There is some irony to the fact that the Christianized West has become the great promoter of global markets. Christ’s own poverty was a basic fact, considered essential to his nature, not accidental. When he appeared to the saints, he appeared as a pauper. In time Jesus would be called the King of Kings, but so far as I know he was never called the Merchant of all Merchants.12 Judas, who sold Christ for thirty pieces of silver, haunted the Middle Ages as the one disciple whose sin was never forgiven: singled out as symbolic of all Jewishness, he was often depicted as satanic or bestial. For centuries images of urbanized, feminized corruption linked Judaism to “filthy” lucre, and linked, through Judas, money as well as Jews to Christ-killing.13 Ironically, attempts to imitate the pure poverty of Christ helped to form our earliest conception of individual rights as anterior to the polity—rights only later claimed on behalf of property itself. Through poverty, as well as martyrdom and virginity, early Christians sought an individual, transfiguring unity with the Body of Christ. This asceticism was not a revolt of the soul against the body, but instead a stark refusal of the self, body and soul together, to become captive to the polity—to enmesh itself within the intricate webs of property, family, trade, and civic obligation that meant surrender of the self to the fallen world’s domination, and definition.14

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Eventually, however, the medieval church would vigorously involve itself in defending property. The pivotal transitional figure was Augustine, whose political and theological thought still has an oddly confounding influence. (Derrida says, “I am constantly playing, seriously playing, with [Augustine]. . . . There is a love story and a deconstruction between us.”15) To say transitional figure, however, is not to suggest that Augustine can be read as an unabashed apologist for markets, an ancient Milton Friedman. Augustine locates the lust for wealth, like the lust for power and sex, in sin. There is no ambiguity: cupiditas is not the caritas for which he yearns and prays. Caritas comes only as a divine gift that reorients desire and makes possible a free and boundless love of God and the neighbor. Indeed, Augustine argues, to reinforce cupiditas is to build habits of anxious, insatiable longing that may forever bind us to the treasures of the earth instead of to God, and therefore to necessity, not freedom.16 The wealthy man is “never secure; he is always unquiet.”17 Desire for the wealth that serves and delights people also traps them within the circle of the economy, which both relentlessly stimulates further desire and inevitably enmeshes one in evil. Augustine describes the competition for cash and property, for the finite accumulation of earthly treasure, as no less rooted in conflict than the lust for dominion over others. Like the struggle for political rule—although on a lesser, derivative, level—it entails oppression and self-contradiction. As he explains, the beloved peace of the earthly city rests on conquest, and its inevitably coercive administration depends on appeal to the desire for power over others. It is always, therefore, complicit with death. So too the economy, which offers welcome relief from need, inevitably entails an alienated objectification of others, a sign of the same complicity. Augustine’s metaphorical description of economic life is strikingly violent: “Note the evil sea, the bitter sea raging with waves; note with what type of men it is filled. Whoever desires an inheritance without desiring the death of another? Who desires profit without desiring loss for someone else? How many seek to climb by the failure of others? How many desire others to sell their goods so that they themselves may buy them? How they mutually oppress, and those who are able, devour?”18 Thus even the simple act of trade involves objectification of others, the antithesis of caritas. This implicit evil is not confined to merchant commerce, but creeps into all economic activity. It cannot be escaped, for example, by turning from trade to some seemingly more virtuous, “natural” occupation. A shoemaker finds himself tempted to cut costs with poorer workmanship, or a farmer with stored grain might hope for crop failures so he can sell his stores at a high price.19 To be enmeshed in a system of supply and demand is to sin; sin is inherent in the way one views one’s situation in relation to others.

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As with political power, however, Augustine’s critique is also a defense. Only the inevitably sinful but tragically necessary exercise of coercion brings peace to the earthly city, and peace for Augustine is a genuine good, the highest worldly good. So too, for Augustine, material goods are also genuine goods, even if rooted in evil. In one long and paradoxical passage he describes the real material “blessings” of life, which are blessings even while nonetheless remaining “subject to condemnation.” Exuberantly he praises inventions people have contrived, and he understands, with extraordinary foresight, that this flamboyant process of material production contains no natural moral limit. Thus many human contrivances will be “superfluous, or even perilous and hurtful,” but they are still evidence of the “great good” of human capacity: “How wonderful, how astonishing, are the achievements of human industry in devising clothing and shelter . . . agriculture and navigation,” Augustine declares, citing advances in pottery, astronomy, painting, mathematics, theater, music, even seasonings for food. Yet there are ironic juxtapositions, as in, “How many kinds of poisons, weapons and contrivances have been devised for use against men? How many medicines and remedies do we find used to preserve or restore health?” Surprisingly, he even celebrates the “great ingenuity displayed by philosophers and heretics in defending even errors and false doctrines.” Of course he insists that all these goods—indisputably real goods, however ethically ambiguous—are as nothing compared to the gift of salvation, which leads to the only City where pure caritas prevails. Only there lies freedom from the conflict inherent in economy and politics, as in language and morality as well.20 A key effect of Augustine on later medieval Christian economic thought derived from his suspicion of perfectionism. After Augustine, Christian social perfectionist tendencies, which kept erupting, could be labeled heretical; the yearning perfectly to initiate the Body of Christ would be contained within the holy orders, where it sanctified rather than disrupted the wider network of social relations. Market theories emerged partly as justification for that orthodox anti-perfectionist theological/political position. Augustine had sensed in perfectionism an implicit elitist privatism that refused to acknowledge the shared sin that bound people together in equality, even as it alienated them from each other. Indeed, he insisted, even his monastery, based on caritas and dedicated to communal sharing, was marred by human imperfection and therefore inextricably bound up with the worldly city.21 Thus, with no Second Coming on the immediate horizon, Augustine urged gratitude and interconnection within the existing world, rather than the pride of perfectionist separation. Those who sought completely to escape the fallen world were blind to the lingering signs of their own fallen natures; if they found themselves (always imperfectly) capable of caritas,

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that capacity came as a gift from God, not as a result of their own merit (“for what have you that you did not receive?”).22 Nor, arguably, would he have disagreed with the deconstructive insistence that in this world no true gift or hospitality is really possible. The gift implodes into exchange when it enters the realm of reciprocal human interaction, and hospitality both begins and ends with boundaries. Nevertheless he would also, presumably, have affirmed (inconsistently?) that faith in God is faith in the Gift, faith in a divine, limitless self-giving that is also the gift of faith itself—a boundlessness that allows us to move into a paradox we can never really “solve,” the paradox of caritas.23 In any case, with respect to a clear ethics, or justice, of the market—or of politics—he left only ambiguity, paradox, and an ironic appreciation for the unexpected manner by which good can spring from evil, and evil from good.

PART II By the early High Middle Ages the church had retained Augustine’s rejection of separatist perfectionism, but sought to combine that rejection with the spiritual affirmation of social interconnection within an all-enveloping, universalist church order. The medieval political ideal was one of organic/spiritual unity, based symbolically on the Body of Christ, with the Pope, as vicar of Christ, at its head. Central to this conceptualism was the idea of mediate articulation, with people socially grouped by function, as wholes within wholes, not as isolated individuals. Within this model, which seemed to allow society to attain a shimmering closeness to the City of God, human reason, the natural world, and God Himself were all interrelated within the structure of reality itself. This ontology, and its teleological, essentialist conception of virtue and natural law, were drawn from Aristotle, whose rediscovery, by way of newly available Latin translations from Arabic, had provided both intellectual challenge and opportunity. By the early 1100s the Papal Revolution had secured the independence of the church from secular rulers, which then led to the church’s overarching authority over all of Western Europe. The reconciliation of Christian theology to Aristotle’s pagan realist philosophy, however bracing the task, seemed to represent at an intellectual level the church’s ultimate goal of uniting the sacred and the secular realms. Medieval natural law methodology, drawn from Aristotle, thus left extreme Augustinian skepticism and antitheses behind as it sought to ease paradox, close gaps, and unify dualities.24 This integrative methodology, however improbably, incorporated within its fold both market thought and market realities. A striking example of how this process unfolded at the level of intellectual history came in the early 1200s with St. Francis’s call to complete poverty. Francis and his fol-

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lowers “took Lady Poverty to bride” with a vow not to own property or even to touch money: “You received without pay, give without pay. Take no gold, nor silver, nor copper, in your belts, no bag for your journey, nor two tunics, nor sandals, nor a staff.”25 In effect the Franciscans sought to imitate, directly, the Gift they had received, the Body of Christ Himself. It is said that Francis (who never doubted his own imperfections) was stigmatized and suffered from the bleeding wounds,26 as a sign of almost perfect imitation. Some of the more radical Franciscans joined with volatile millenialist sects like the Joachimites who, unlike Francis, predicted the coming of a new, perfected kingdom here on earth; the wicked (especially including the Jews) would be destroyed, and the separated, chosen people of God would live in a perfect society, a redeemed New Age of the Spirit, without law, government, or inequality, where all would live without property, at a subsistence level.27 In this disruptive political context, which lasted for decades, the churchmen formulated an elaborate defense of property. The process started with the insight that Christ did not starve himself, which means that he exercised at least a use right of dominion over things, which itself could be conceived as a kind of subjective right. Thus originated the first extensive elaboration of a theory of property as subjective right. The full implications of this insight were debated at length. Franciscans and their defenders argued the importance of the distinction between use and actual “right;” one might have, they argued, a usus facti, the “use of [material] things in fact,” but not “in right” and therefore still be said to live as a pauper, without property.28 Finally, after almost a century of disputes, Pope John XXII in the 1300s obliterated this distinction: to exercise dominion over things, he declared, is of necessity to exercise a private right. Jesus and the Apostles, and therefore, the Franciscans as well, possessed goods both privately and in common, and therefore could not be, despite their proud claims, “practitioners of abject poverty.” To attempt pure poverty was to be guilty of the same heretical separatism Augustine had condemned.29 When this papal stand perpetrated a political crisis (Emperor Louis of Bavaria sided with the Franciscans), Pope John issued a yet more emphatic bull: even before the fall, he stated (in direct contradiction to Augustine as well as to millenialist eschatology), men exercised rights of dominion over property. “Ownership of property was not a mark of fallen man, but a divine dispensation.“30 This notion of a presocial and even prelapsarian subjective right of dominion—the right, in effect, of “possessive individualism”—thus emerged centuries before Locke. As developed by the medieval schoolmen, it then became familiar to Thomistic counterreformation scholars, and in the early seventeenth century Grotius provided the bridge to the Enlightenment.31

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This basic defense of property then became a defense of markets as well, but there were serious Aristotelian stumbling blocks. Aristotle’s delineation of virtues, as rooted in nature and essentialist purpose, simultaneously celebrated politics and denigrated trade. Through participation in politics, Aristotle said, men could exercise the virtues rooted in their natural sociability, and thereby realize their true ends. To be in accord with Aristotle the schoolmen had quickly taken the position (again, contrary to Augustine) that politics, even coercive politics, existed before the fall. Trade posed a special problem, however, for Aristotle had seemed quite definite: the “natural” economy is the one associated with the household of land, family, and slaves; that household is the foundation for a man’s “higher” participation in politics, and for ethics itself. Thus economics as the natural, landed household could be considered “necessary and in good esteem.” Trade, however, especially when done for money and not simply as barter, is basically despicable, for it is not “in accordance with nature.” Trade is “justly discredited,” for it involves “men’s taking things from one another.” Even worse, of course, is usury, which means making money breed money and therefore “is against nature,” since only living organisms naturally breed offspring, and then with variation. Tekos in Greek means both offspring and usury; the suggestion was one of sexual perversion.32 Such Aristotelian arguments could be underscored, of course, by biblical injunction, as with reference to the money changers in the temple and Christ’s admonition from Luke 6:35 to “do good, and lend, expecting nothing in return.” Aristotle also distrusted money itself, but not quite as much as did the Spartans, who outlawed it for all citizens.33 (So too, more recently, did the North Koreans: the impulse lingers.) Aristotle conceded that the “natural” household might not be able to fill all needs by use of barter; the invention of money arose, therefore, by mutual compact, but money was artificial, not natural, “entirely a convention but by nature nothing.”34 (More graphically, many medieval pictorial depictions of money associated it, like Jews, with excrement and vomit.35) Challenged by Franciscan perfectionism,36 however, the schoolmen, while dedicated to the Gospel and to Aristotelian natural law, constructed a remarkably sophisticated conception of a Christian market. Scholars have traced the careful process of analysis. Scholastics derived from their initial justification for property a version of the now-standard economic argument about the waste of the commons, which they saw as an argument about peace rather than strife as well as about providing incentive for labor; and from that argument they further derived the argument for exchange, since, they said, it mattered little whether the fruits of labor were realized through consumption or exchange.37 Gradually, too, the view that trade for profit was always sin gave way to a concern for stipulating exactly how trade could proceed without sin. Indeed, schoolmen came back to the originally

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Augustinian view of trade as no more (or less) inherently sinful than other economic occupations, and as contributing to legitimate social needs. Even the calculation of risk and future demand came to be viewed as legitimate “labor,” like farming.38 Moreover, despite Aristotle, the schoolmen showed that exchange value could be abstracted from any lingering conception of objectively natural or “true” value, and located instead in subjective demand alone. Aquinas developed the point directly from Augustine, who had commented on the disjunction between a thing’s supposed value in the “order of nature” and its value according to human utility. In nature we might rank sentient beings above objects, and humans above animals. Yet who, Augustine asked, “would not rather have bread in his house than mice, or gold than fleas?” And humans, Augustine commented with irony, while claiming for themselves “great dignity in the natural order, will often give more for a horse than for a slave or pay more for a jewel than a maidservant.”39 Aquinas accepted this point as sufficient justification for using the “market scale of values . . . over the ontological scale,” and therefore also for accepting, consistent with the civil law tradition, a relative laxness with respect to insisting on any kind of real equality in exchange value.40 Indeed, the schoolmen further developed this notion of utility into a recognition of the value enhancing exchange, which might be considered “just” in Aristotelian terms despite its seeming violation of the ethically required objective “equality” in exchange. Giles of Lessines announced clearly, “The surplus which derives from exchange or sale, does not possess the vice of inequality.”41 Certainly parties bargain, not in a spirit of caritas, but only for their own “advantage.” Each will end up with less than he tries to obtain from the other, but at the same time each will also derive more in value than what he yields. Thus the schoolmen discovered, to their surprise and delight, that there was in fact a “gift” in each value-enhancing self-interested exchange. In light of that gift or surplus, they saw no reason to scrutinize exchanges for value equivalencies, and in any event they could see no workable method for doing so.42 Similarly, contrary to common assumption, just price was in fact closely linked to market price. The schoolmen understood well before Adam Smith that, in general, seller competition was the buyer’s most effective protection against high prices, and they also knew high prices were a signal for an increase in supply. They continued to insist, however, that deliberately raising prices simply by creating scarcity, as in regrating, was a moral wrong. Profit from “artificial” scarcity remained “filthy” gain, as did supracompetitive prices that took advantage of another’s desperate need.43 Aristotle’s influence with respect to usury, however, remained relatively strong, and the nature of usury became a central question during the twelfth century. The Gospel admonition of Luke 6:35 gave support for

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the view that avaricious intent was the real sin to be avoided (as it was in economic affairs generally), not unnatural breeding as such, but by 1270 Aquinas had developed a full natural law argument against usury based on money’s essentialist purpose: the proper use of money is exchange, after which it is consumed, and thereby changed in substance; if a lender sells both the substance and the use of money, he sells the same thing twice, or sells something that simply does not exist, a manifest injustice. Alternatively, it was sometimes said that the usurer was attempting to sell time, which belongs naturally only to God (or to all creatures collectively) and gives of itself. Even with respect to usury, however, a series of exceptions emerged. A common scholastic approach with most difficult questions was to maintain a strict general prohibition, especially in a context where a particular injustice was feared (as with oppression of the poor as desperate borrowers), but then to provide for exceptions if they were consistent with the underlying reason for the rule.44 Early exceptions allowed, for example, for foreign currency exchange. Other exceptions often took the form of “extrinsic titles” because they represented payment for something “outside” the money itself. Certain forms of interesse were thus recognized, a word derived from “quod est inter,” or what comes between the present position of the lender and the position he would have been in if the loan had not been made—a potentially expansive notion.45 In case of default, interest was easily justified as “standard punishment” (poena conventionalis). Thomas himself accepted this title and eventually, but more cautiously, he accepted lucrum cessans, or what the lender was not making because he could not benefit from the money lent out—i.e., lost opportunity costs. While this title was in theory confined to lost opportunity to labor, in many contexts, as where lenders were also merchant houses, showing lost opportunity costs was usually possible. Meanwhile, payment for the risk of investment was understood as a kind of partnership contract, by which one entered a societas from which profit could be derived. The scholastic requirement was that risk actually be taken, to justify profit, or else the arrangement was usurious. In time it even became possible to separate out sale of the “right” to money from usury, as with a property-based form of annuity called the census (the major medieval form of agricultural credit). The same concept could then be turned into a census based on taxes (a government bond) and sale of debt to a third party at discount. Interest was justified simply as return for risk.46 From the modern perspective the notion of money’s sterility, and the view that its only proper purpose was exchange, not investment, could probably be said to have hampered the development of a coherent theory of investment capital. We might also be inclined to assume that the “exceptions” to the usury doctrine were simply reluctant concessions to a market

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that was following its own “natural” material path, irrespective of church teachings. That perspective, however, seems askew. In fact the church, which was the center of intellectual life at the time, created most of the foundations of modern market theory, and did so for explicitly theological reasons. One important goal was to avoid the implicitly separatist heresy of perfectionism, and that goal required a defense of property ownership; from that defense of property schoolmen derived, through their usual practice of careful formulation and reformulation, the rudiments of market exchange economics. It is not coincidental that many of the major contributors to this process were friars (Franciscans and others) who accepted the church’s negative position on privatized or millennial perfectionism and engaged in an intellectual struggle to absorb the notion of property within a Christianized natural law ontological framework. That framework, which still excluded purely self-interested individualism as such, was itself designed with the broader goal of creating a social whole of such intricate, organically interrelated parts (including markets) that the Body of Christ— the Gift itself—could almost be made manifest, as itself an offering to God. This unifying goal required reconciling the sacred to the secular, which in turn required imposing some Aristotelian limits wherever natural reason (or a charitable spirit) would admit of no exception based on underlying principle. A theory of markets was thus one part of a broader vision of society that, confronted by the model of Christ, rejected immediate and perfect individual or millennial imitation (despite the lingering longing) and sought instead improvements within the existing political and material world that would gradually lead the city on earth toward shimmering closeness to the City of God. This more gradualist and all-embracing social vision meant a reciprocal intersection, at many different levels, between the secular and the ecclesiastical, the material and the spiritual.47 It was an intersection that took place at the social and institutional level, not just the theoretical. It may be worth noting at least some of those reciprocal intersections, while of course not attempting a full description of the complexities of the institutional and economic history of medieval commercial expansion. This process of material and spiritual intersection had started early, as a response, in fact, to an alternative conception of gift-giving. The early Germanic invaders at the fall of Rome, as well as later Viking marauders, represented a cultural model akin to what anthropologists consider a gift economy, with massive reciprocal displays of largesse, usually from plunder, and with treasure routinely buried with the dead, or sent to sea. The goal was not accumulation of wealth, but honor—a matter of relationship, not material gain. The Christianizing of the invading pagans after the fifth century meant that these rival gift economies were effectively co-opted by the church; claiming sole access to a Gift so infinitely valuable it could

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never be rivaled, the church in effect offered the Vikings a “better deal.” As against honor, it posed a model of charity and self-sacrifice, with the promise of spiritual rewards—treasures in heaven—that transcended earthly gifts. Paradoxically, the church thus allied charity with exchange in opposition to gift-giving: in the process it successfully eradicated the practice of treasure burial, and channeled the practice of gift-giving to the church itself, in the name of caritas. As just one concrete example, Charlemagne continued the pillaging of adversaries, but richly endowed monasteries rather than engaging in reciprocal gift displays. He also, as the great Christianizer, initiated the minting of silver as an exchange medium, established a system of weights and measures for trade, and instituted a legal system.48 By the eleventh century the church, with its endowed monasteries, probably owned roughly a third of the land in Western Europe and most of the stores of treasure. Treasure, traded and converted into specie and released into the economy, helped facilitate the commercial growth of the eleventh and twelfth centuries; by then buried treasure had largely disappeared, and the whole Christian West was trading in coins. The church had thus released “a great part of the liquid capital of the Western world.”49 By then Christian Europe was directing most of its pillaging outward. The church outlawed the plunder of fellow Christians and urged pillage of Muslims instead; Jews and heretical sects remained internal targets. During the Crusades, from the eleventh to the thirteenth centuries, trade routes and outward plunder developed almost hand-in-hand. Merchants were granted special protection when they accompanied the Crusaders, and all the ports of Western Europe benefitted. By the twelfth century Western Europe was largely linked by trade, with trade routes reaching out from there to most of the rest of the known world. As a religiously acceptable alternative to plunder from conquest, the church usually received a special tax or license fee for any trade conducted with non-Christians. Thus the exclusivity the church assumed for itself—the claimed monopoly over salvation that it used to justify conquest and conversion—actually led to a universalism, which was one of the church’s most important legacies to modern world trade. The effort to bring together, even if by conquest, a single all-embracing Body of Christ on earth produced an explicit doctrine of the “universal economy,” which contributed to Smith’s anti-mercantilist understanding of international trade, and to our own as well.50 Meanwhile ordinary features of manor or monastery life connected the church to credit and market exchange. Like some earlier tribal leaders, churches lent out cattle or other animals for breeding or work, in return for rent. From there it was a short step to lending money for the purchase of cattle, and then to lending money for other purposes as well. “Cattle” and “capital” are, in French, from the same root,51 and monasteries, especially, became credit banks, often holding the largest local source of avail-

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able capital. Eventually church loans went as well to nobles, merchants, and rulers.52 Similarly, the church became an important player in the early use of land to generate capital. Some of the first landlords to take payment in specie rather than kind were monks,53 and monasteries moved from selfsufficiency to production of surplus with activities like wine making and sheep grazing. Cistercian monasteries, in a move toward division and specialization of labor, included conversi (a class of workers distinct from the choir monks), chiefly for labor on distant granges devoted to sheep. With textile trade a vital step in the development of commerce, it is notable that such monasteries produced the highest quality wool, commanding the highest prices, and entered into lucrative advance contracts with wool exporters. In a culture where, increasingly, everything seemed to have a price, Cistercian wool provided the money to pay the ransom for Richard I in 1193 and 1194.54 Indeed, management of church finances was often sufficiently complex to require a division of labor between the cellarer, who managed produce, and the chamberlain, who handled finances.55 Not surprisingly, abbots had to be administrators as well as spiritual advisors, and the art of doubleentry bookkeeping almost certainly arose among church administrators. The first widely used treatise describing that art was written by one of the more worldly of the non-perfectionist Franciscans, Fra Luca, whose technique was thoroughly modern except for his insistence that each ledger begin with a cross and the name of God. In effect, double-entry bookkeeping was a kind of true confessional of merchant activity, with no debt hidden in guilty obscurity. Later, Protestants would be equally enthusiastic; Daniel Defoe said that a well-ordered account book was second in importance only to preparing the soul to meet God, as preparation for death.56 By the fifteenth century, Catholic celebration of markets was evident even in art. Portraits of the Virgin with Child or at the Annunciation depict her surrounded by tapestries, porcelain, silks, and ornaments that were unmistakably the goods of international trade.57 (Notably, Christ Himself, so far as I know, was never so depicted.) Even the pigments, as with ultramarine blue, were recognized at the time as traded goods. In theory, religious depictions of the treasures of the world were always meant to point, not to those treasures themselves, but to the infinite gap that lay between them and the real treasures, the treasures of heaven, which were about humility rather than pride. Nevertheless, lavish altar pieces, usually donated by merchants, were obviously designed to inspire awe for the successes of trade as well as awe for the power of the divine58 and, in combination with bookkeeping, also showed the degree to which a culture, still with flamboyant gift-giving impulses, could be ecclesiastically disciplined to and by the processes of exchange.

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Probably more important than direct church financial involvement in trade was the institutional intersection between the church and markets, providing infrastructural support at a time of relatively weak government. For example, at the local level, the church or cathedral was often a site for trading and merchant fairs, despite occasional objections about commotion and revelry.59 Church officers often had the job of keeping length, weight, and liquid measures, to prevent fraud.60 Meanwhile, at a more global level, the church provided a legal and administrative bureaucracy with ties to all Western Christendom; appeals from all of Europe came to papal courts in Rome. The church also provided the only major system of formal education, which shifted from an emphasis on monastic spiritual development to an emphasis, especially in urban schools, on dialectical training through disputation and a revival of ancient learning, including both legal and scientific learning. The papacy ran universities that became centers of knowledge in which students could go on to prepare for careers like law, administration, or teaching. Law as a “science,” in fact, emerged from this medieval university training.61 The educated often traveled, working for pay for merchants or rulers and laying the foundation for the great scholar-teachers of the humanist period.62 Moreover the courts that provided the legal infrastructure for the construction of a complex market economy were often held in churches or at the church door: the use of churches as courts was apparently “almost universally adopted.”63 Sometimes clergy objected when assizes were held in churches, but clergy routinely held similar courts themselves, and abbots sometimes served as itinerant justices. Ecclesiastical cases included all traditional ecclesiastical subjects like probate and marriage, but the church also exercised flexible jurisdiction, covering any case with an arguably moral dimension, as with usury; ecclesiastical, civil, and feudal authority blended together. In the 1200s contract and debt were included within church authority.64 They came naturally to church courts because such agreements were often sealed by oath, so failure to perform was a form of perjury.65 While much of contract law could be derived from Roman law, the church made a crucial addition—contracts could be based on a promise alone for promises were binding in “conscience”—presumably a basis for enforcement of purely executory contracts.66 For punishment, the court could invoke civil confiscation of property, along with exclusion from the sacraments, refused absolution, excommunication, and social and economic boycott even of whole municipalities.67 For merchants who were traveling abroad, beyond the immediate reach of courts, special confessionals came to be designed (Columbus carried one) that explicitly listed the ethical requirements of fair trade. The first listed sin was trading with Muslims without a license from the church; other rules related to issues like fraud, trading worthless for

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valuable goods when others were ignorant, or taking unfair advantage of another’s need.68 Commercial dealings also came to be governed by “piepowder” (dusty feet) courts at fairs and open markets, or as set up by guilds. Such courts were modeled on the “Summary,” or a quick, plain procedure for those ecclesiastical courts conducted for specialized purposes requiring speed. These informal merchant courts gained some autonomy from ecclesiastical or government oversight, but, like the guilds, were part of a social system of wholes within wholes, premised on notions of social interconnection and “good faith.”69 From within this system, which developed a body of merchant law, emerged instruments of credit such as promissory notes. In a manner unknown to early German or Roman law, or even to the sophisticated and vigorous merchant life of Islam, these notes could themselves become negotiable, as objects of exchange. Such “abstract contracts,” wholly divorced from the relationship between the initial contracting parties, were obviously important for the emergence of a credit-based economy.70 Similarly, from within this system emerged the notion of the business corporation, modeled after the church. The church was the original “corporation” because, as the “Body of Christ,” it was composed of actual, mortal human beings, but at the same time had a mystical, abstract existence that transcended the mortality of any living person.71 Thus, paradoxically, faith in the gifts the church offered—indeed, the gift of “good faith” itself—served to facilitate credit and corporate transactions almost as a kind of perfect charity: in the pure arms-length, abstracted credit or corporate transaction donor and donee cannot possibly know who the other is. That complete reciprocal ignorance is, in fact, a theoretical criterion for the “pure” gift because it precludes the expectation of personal “payback.” Such ignorance, which always eludes the traditionalist, relational, supposedly “gift-giving” cultures premised on honor, actually lies at the heart of advanced market economics. One feature of the medieval economy seems to have been a tendency toward monopoly, a tendency that became intertwined with the church’s sole ownership of the “gifts” of the sacraments. The church, generally protective of buyers, unambiguously condemned “private” monopolizing or price fixing designed to raise prices above a competitive level,72 (although it sanctioned at least some publicly constituted “societies” like guilds). Nevertheless, claiming exclusive access to the means of salvation—probably the most valuable commodity of the Middle Ages—the church itself operated, as some have argued, in many ways as a giant monopoly firm, policing entry barriers and maximizing rents. No single government collected as much revenue as did the church.73 Appropriately, in time, the church’s natural business partners would become other powerful monopolies. In one well-known example, when

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Pope Pius II discovered on church property a source of alum (used in dyeing cloth and otherwise available only from the Muslims), he entered into an agreement that gave the Medicis, already creditors to the church, the rights to investment and marketing in exchange for a “tax” on sales. When another source of European alum was discovered, the church entered into a cartel agreement to control prices; meanwhile, the Pope issued an interdict against cities that purchased alum from Islamic countries.74 Too obviously, through indulgences salvation itself would in time also reveal itself as yet another commodity, like alum, for monopolist exchange. By Luther’s day the church had turned the relatively new doctrine of purgatory into an elaborate double-entry approach to salvation; the origins lay in good works as penance following confession. The idea arose that the sacrifice of Christ and the piety of saints had given the church an infinite abundance of salvation treasure that it could apply to insure speedy purgatory; the “donations” given by the faithful in return for the promised speed were a form of good works. Market analogies came easily to mind: as one theologian at the time stated, “Salvation [is] . . . a sort of merchandise to be bought and sold.”75 In Germany the church used its ties with the Fugger bankers to market the indulgences that Luther made notorious. Involved in virtually every European enterprise that required substantial capital, the Fuggers took a share of each indulgence sold, and then gained further revenue by their commission as currency changers for the Pope. The indulgences they sold, called St. Peter’s indulgences, promised forgiveness for every sin, past or future, and a direct route to heaven. Notably, the Diet of Worms, which condemned Martin Luther for his challenge to the church on the indulgence question, also introduced a series of Diets on the question of monopoly economic power generally, as exercised by the Fuggers and similar firms and as defended by the church. In a sense, indulgences were just part of a growing problem: both the church and the increasingly powerful states, which by then had adapted from the papacy similarly elaborate Christological ecclesiologies of rulership and law, were dependent on the capital resources only firms like the Fuggers could muster.76 Relations had become relations of symbiosis, or identity.

PART III Luther sought to remove the Gift from relations of exchange by declaring it truly priceless, a free Gift from an unknowable Creditor, given to cover a debt so infinite that nothing short of infinite self-sacrifice, the sacrifice of the Creditor Himself, could provide repayment. Protestants would struggle for centuries to define and protect the utter freedom of exchange that sup-

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posedly insured that this covenant of grace, sealed by a sacrifice known only through faith, was not itself a transaction. Weber did not fully understand that struggle, which is why he did not notice how assiduously Protestants tried, in fact, to “prevent the Protestant ethic from turning into the spirit of capitalism,” as one historian has noted succinctly with respect to New England Calvinism.77 Work was indeed a calling, but Calvinists were under a covenant of grace, not works, and the sign of grace is caritas—the desire to give—not personal gain. Luther himself was if anything more hostile to commerce than the churchmen, and at least as restrictive with respect to usury, which Protestants continued to associate with Judaism. Luther’s treatise on the question of trade and usury carefully delineated norms for appropriate profit and interest—with, for example, 5 percent noted as a usually legitimate interest rate if based on such criteria as risk of nonpayment and lost opportunity costs. Such criteria were, of course, consistent with those developed earlier by the schoolmen; Calvin offered no significant departure.78 Some historians now conclude that, after the Reformation, the most rapid capitalist development actually took place in areas that were still Catholic. Whether or not that conclusion is accurate, it is at least the case that postReformation commercial expansion was built on legal, institutional, and intellectual foundations fully laid down when Catholicism united the West. Indeed, the particular period of commercial decline that had started in the mid-fourteenth century, preceding the Reformation, itself resulted in part because global commerce had meant plague bacillus was carried along trade routes, devastating Europe. The plague had accompanied a steady stream of needed foods, idle luxuries, new technologies, gun designs and powder, printing methods, and, later, the “heretical” ideas of the Reformers themselves—exactly that inextricably intertwined mixture of good and evil Augustine had described.79 Nevertheless, it is tempting to see Protestantism’s nominalist image of an utterly transcendent God, unconstrained by limits located in human reason, reflected in the image of the possessive, market-oriented individual no longer constrained by medieval norms of natural justice. The more immediate symbiotic relationship, however, was between the Protestant nominalist God and the positivism of unfettered secular political power. Hobbes stands as prototype for this direction in Protestant thought. As he argued, drawing on Augustinian linguistic skepticism, during this period between the Resurrection and the Second Coming a thoroughly transcendent God, removed from the sacralized Aristotelianism of the Middle Ages, relates to humans only through biblical text—a series of disparate linguistic events ending with the Gospel account. Any laws of nature, if they exist at all, are unwritten, remote, and largely illegible, available to us only by acts of human interpretation, itself a form of legislation.80 To prevent the chaos

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of a multitude of prideful, private interpretations, Hobbes insisted, church and laity alike should submit to whatever interpretation the sovereign provides. An obvious Protestant assumption was that the economy was equally subject to political control, so that the real direction of post-Reformation economics was toward state-centered mercantilism rather than free trade.81 Hobbes was not atypical in his fear of religious chaos. The English Civil War, and the bloody post-Reformation periods of religious warfare generally, had reminded people of a key Augustinian insight: the desire (affectus) for religion is not different in kind from the desire for power and wealth. Caritas is desire, or delight, redirected or pulled away from (or weighted against) love of finite goods;82 but a redirected (or misdirected) desire is desire nonetheless, with its own capacity to shatter the peace. The Peace of Westphalia officially sanctioned the nation-state’s authority over the potentially disruptive desire for religious truth. Nevertheless, this post-Reformation recourse to unconstrained secular power produced its own conflicts. Recent scholarly attention to European market theory before the American Revolution has shown the extent to which markets, which in theory directed desire toward material goods alone, came to be understood as a kind of taming counterweight to both the desire for religion and the desire for political power. In reconfigured form, markets were thus once again defended as a concession to human imperfectability—a partial solution to the pressing moral challenges posed by the nature of politics and religion. Thus Voltaire, for example, praised the London Stock Exchange as a place where men of radically different religious views could “deal together freely and with trust and peace.”83 Compared to competition over religion, for which people killed each other, competition for wealth was, on the whole, a peaceful activity, displacing excessive religious zeal. Similar arguments were advanced with respect to political power. Through global market transactions not only did avarice itself seem tamed and rationalized when reimagined as “interest,” but so too the potentially reckless and violent acts of sovereign power were thought to be tamed and contained by interest as well—by the wide dispersal of moveable wealth into many hands, and by the ever-expanding processes of international exchange.84 A sovereign state whose interests were enmeshed within a web of economic relations was a tamer state. It is worth focusing on one particular aspect of these pre-Smithian market analyses, the so-called Country and Court debate in England, which formed a backdrop to American constitutionalism. Once again, market theory was articulated in dialectical relationship to a perfectionist religious challenge, as a concession to human imperfectability. The various market economists whose line of thought was most influentially realized in Wealth of Nations represented, in a very general sense, the Court position, which had emerged

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not just as a search for economic truth conducted in splendid isolation, but also as against an antimarket neo-Harringtonian “Country” direction of Protestant English thought. The Country position sought, in new form, a return to anticommercial perfectionist religious possibilities.85 Country advocates had witnessed dramatic financial changes in England: the founding of the Bank of England and the East India and South Sea Companies as chartered monopolies, extensive public debt, an expanded money market, and a dizzying variety of new investment and exchange options. For many, it seemed that this “over invested society” was one where “the value of everything was reducible to the fluctuating loan rate or the daily price of government stock.“86 The Country party included some large Tory landowners who felt overtaxed to support the Court-sponsored financial system, but its most influential members embraced a kind of enthusiast Protestant version of Aristotelian perfectionism, constituted as against an economy described as corrupted, artificial, urbanized, and therefore feminized. (In other words, images typically associated with Judaism had returned.) James Harrington, whose work of the mid-1600s was so influential in the colonies, came to represent the Country, or neo-Harringtonian, position. Harrington had incorporated directly a number of rudimentary Aristotelian premises that sophisticated Catholic theorists had carefully refashioned. First was the “naturalness” of the landed household as the primary basis for a sound economy. That “naturalness” was the assumption behind Harrington’s well-known “balance” of land in distributions appropriate to models of sovereign power (relative equality of distribution for democracy). Second was the emphasis on political participation as the natural end of human sociality, in sharp contrast to the artificiality of monetary exchange as a mere means. This Aristotelian celebration of politics had reemerged in the Machiavellian civic humanist tradition, tending to mute Augustinian warnings about the imperfectability of the earthly city. Finally, Country neo-Harringtonians emphasized traditional Aristotelian “virtues,” which were often, if not always, neo-Harringtonian virtues linked to religion, but which also harkened back to the robust virtues of Sparta and the early days of the Roman republic, before luxuries and corruption led to decline and degeneracy.87 Many early Americans, whose views were shaped by the County position, wistfully yearned for a “continuously expanding agricultural utopia in a state of primitive Spartan virtue”—the Jeffersonian ideal of the yeomen farmer economy.88 (Implicit, if sometimes unacknowledged, was also the virtue realized, as Machiavelli had taught, through sturdy citizen militarism.) Harrington’s peculiar genius, which led to its English revivals and potent influence in America, was to combine these purified retrievals from Aristotle with millennial Protestant enthusiasm, including millennial

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exclusion of Jews, who, according to Harrington, were monied parasites who would “suck the nourishment which would sustain a natural and useful member.”89 Harrington described the participatory politics of the true republic as a new type of the model given by God to ancient Israel before the corruptions of the monarchy: imitation of ancient Israel was a common Protestant goal, as in New England, and its realizability was a specific point of dispute between Harrington and Hobbes. Also, more ecstatically, Harrington described the participatory republic as a spirit-infused, Christ-like mediation between body and soul, heaven and earth, and form and matter. In effect, the true republic was a Protestant/Aristotelian version of the Body of Christ, achieving a new reconciliation between the earthly city and the City of God90—one that was less global, gradualist, and integrative than the version sought during the Middle Ages. Notably, John Locke, now usually identified with the market model of “possessive individualism,”91 was in the England of the time taken to be part of the Country position, partly because of his radical position justifying political dissolution92 but also because of his seeming return to a classical, land- and labor-based conception of the foundation for political identity, as opposed to the “fantasy and anomie” produced by the corruptions of commerce.93 From the English Court perspective, therefore, Locke seemed allied with radical religious and political dissenters; his land-based claim to “rights” and a pre-social identity seemed to represent a form of privatized perfectionism94 of the kind Augustine had identified, centuries before, in ascetic religious zeal. To many in England, moreover, Locke’s sympathetic ties to Carolinian Planters seemed to confirm one of the glaring moral weaknesses of Aristotelian natural law: its defense of slavery. In the face of Country assaults wielded in the name of Christ and virtue, the task of defending markets tended to fall to the Anglicans. This seems appropriate on at least two fronts. In part the defense of Court-created markets was also simply a defense of the whole political/clerical establishment, since the Anglicans, unlike dissenters, accepted the Crown as head of the church. Second, in contrast to the Country’s return to various forms of Aristotelian and natural law categories, the Anglicans had, with the influential clergyman and political theorist Richard Hooker, made an important shift from the “natural” to the “artificial” in their approach both to politics and to linguistic interpretation. Indeed, defending the Church of England against radical separatist dissenters, Hooker had located the basis for government, not directly in nature or essentialist Aristotelian virtues, but, following Augustine, chiefly in sin and the necessary human construction, over time, of artificial institutional forms for its control.95 Indeed, Hooker had described the need for government in decidedly Augustinian tones: “We all make complaint of the iniquity of our times: not unjustly, for the days are evil. But compare them with those times wherein

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there were no civil societies.”96 Hooker’s own model of the consequently necessary human “consent” to authority was not contractual, as in a Lockean state of nature, nor was it a one-time Hobbesian alienation of sovereignty. Instead, Hooker located consent in the English people’s collective consent, over time, in history, to authority as it was distributed and dispersed within the body politic. He thus conceived of the English body politic as a kind of corporation, because “corporations are immortal; we were then alive in our predecessors; and they in their successors do live still.”97 His descriptions had suggested that the intricate legal dispersals of authority within that corporate body, as delineated by the “artificial” common law and the ancient constitution, had an almost sacramental character, even though rooted in sin and of only human, historical construction.98 Hooker was not a particular defender of markets, but his defense of the all-enveloping Anglican establishment as against perfectionist Puritans would be echoed in later Anglican arguments in favor of markets as against Country attacks. Hence, the first great English defender of markets against Harringtonian republicanism had been Matthew Wren, son of one Laudian bishop and protégé of another. With a critical spirit akin to Hobbesian skepticism, he defended the artificiality of both Anglican clericalism and commercial life, ridiculing efforts to find a transcendentalized virtue in the supposed naturalness of either land or politics.99 A more direct link to the Scottish Enlightenment can be found in Josiah Tucker, Anglican rector (and Dean) in Bristol; generally considered the leading advocate of free trade before Adam Smith, he was a strong influence on David Hume. Tucker anticipated Smith by emphasizing the paradoxical value of “self-love” as a source, not only of wealth, but also of public good. The social goal should not be to enfeeble this selfishness, but to give it “direction” so it can “promote the public interest by pursuing its own.”100 Emphasizing the centrality of both free exchange and division of labor in satisfying human wants, he simply refused to discuss whether or when those “wants” were an improper deviation from natural virtue: deciding whether they were “natural or artificial, real or imaginary” seemed to him a useless enterprise.101 In particular, like both Hume and Smith, he criticized the competitive warlike government drive both to colonize territory and to control imports for the sake of mercantilist national advantage. It is this strong break with mercantilism, in fact, that marks Tucker as a forerunner of “classical” economics, yet in fact, again, his initial concern was theological. Indeed, despite his Anglican loyalty to the political establishment, Tucker thought trade should lead away from nationalism toward Christian universalism. Harkening back to Catholic medieval aspiration, but sharing Augustine’s skepticism about the perfectibility of politics, he explained, “The love of country hath no place in the catalogue of Christian virtues. The love of

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country is, in fact, a local affection and a partial attachment; but the Christian covenant is general, comprehending all mankind within its embraces.” Thus “ideas of honor, and glory, and conquest, and dominion, and other fine things usually implied in the love of country” are wholly opposed to “the Christian scheme of universal love and benevolence.”102 Moreover, whereas Tucker favored liberty for the colonies because it was in England’s own interest, he had no patience for Locke or for the dissenting Americans who quoted him, who seemed to be proudly claiming for themselves some imagined purity of landed virtue. Like Augustine in relation to those who romanticized the early Roman republic, Tucker reminded the Americans that their own republic already rested on a foundation of conquest and domination: “[Americans] claim the rights of life, liberty, and property by the ‘immutable’ laws of nations, but permit me to ask, why are not the poor Negroes and Indians entitled to like benefits?”103 Thus, according to Tucker, markets seemed potentially able to accomplish the Christian universalism that had eluded religion itself. To be sure, Tucker insisted vehemently, markets were not models of moral perfection. They were rooted in selfishness, and they produced luxuries. They also, he fully recognized, produced factory oppressions, which he described graphically, as if by reference to Augustine’s lament over the economy as a “sea” of evil. Yet, paradoxically, from those market evils, Christian good might emerge. David Hume, whose thought so deeply influenced James Madison, would repeat some common Anglican themes: markets promote, not just wealth, but also sociability, tolerance, culture, philosophy, learning, good habits, and even benevolence—a whole set of (arguably “artificial”) goods that Anglicans tended to lump together under the general name “manners.” While Hume himself was a religious skeptic, in Edinburgh he was part of a group of Presbyterian moderates (clergy, lawyers, and professors) who had come to dominate Edinburgh intellectual and political life. At the core were erudite and devout clergymen who had adopted the latitudinarian sensibilities of the “enlightened” Anglicanism of the time, and also shared the Anglican view that Christianity and commerce were utterly compatible, as conducive to the shared goal of “manners.” As typically explained, through the interconnections of commercial life “the mind acquired new vigor [and] enlarges its powers and faculties” and “industry, knowledge, and humanity are linked together by an indissoluble chain.”104 Perhaps because he grew up in Scotland before economic development, Hume had no patience for the Country party’s celebration of the natural virtues of rustic living and the robust barter exchange of self-sufficient producers. Others, like Adam Ferguson, would later praise the unspoiled battle-ready spirit of the pre-commercial Scots, likening them to the early Greeks and Romans. Hume, however, had seen in rural Scotland the

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deadening effects of privation, isolation, and consequent sullen prejudice. Politically, he was also thoroughly Augustinian in his view of the natural, fallen man, refusing to invoke any dependable higher human faculty of reason that could be counted on to create a society in accord with “natural” justice. Nor did he think of markets themselves as an expression of some sort of natural reason. Markets, like civic life generally, were deliberately constructed, a function of historically rooted political and moral choice. Properly designed, they canalized passion for the sake of the moral and material benefits development brought. Notably, while Adam Smith was more inclined than Hume to look for general, ahistoric economic principles, his view of markets was in fact ethically complex and filled with Augustinian-type paradoxes. For example, while division of labor lies at the core of economic development and brings ever-widening commercial expansion, Smith recognized that for many brutalized worker participants in this expansion, specialization actually traps and constricts, thereby narrowing even while also broadening the range of human experience. Moreover, many who yearn for all the advantages enjoyed by the wealthy few will devote their whole lives to achieving financial success—the animating desire of capitalist life. Even the most successful, however, will realize on their deathbeds that their lives have been wasted, built on a socially constructed deception. Society will ultimately benefit from the wealth that results from their obsessive efforts, but they, having bound themselves to an empty goal, will not. Thus social good existed in a complex reciprocal relation to social evil. As Deirdre McCloskey has pointed out, one of the great contributions of the political economists lay in their sense of irony:105 it may be that tone of irony that radically separated them from the schoolmen more than any novelty in their appreciation of markets. In America, the Country/Court debate was reproduced and intensified.106 England was clearly not about to return to rustic purity: that option was fanciful, even though its hold on the imagination was so great that Adam Smith himself wrote by reference to its moral virtues. In the American colonies, however, such an option seemed less far-fetched, even though trade with England was always a colonial reality. Accounts of the colonial economy differ, and certainly locations varied widely, but at least for many families—especially those without ready access to urban or international markets—semi-subsistence farming was a viable way of life. Local exchange existed, but simple exchange relations had not turned into a commercial market economy. Many farm families still bartered home-crafted implements or home-grown produce directly rather than through merchant middlemen; while an account of debt might be kept in money terms, “the price system was not sovereign.”107 Often “debt” would be paid back without interest, for example, by subsequent barter. Moreover, the primary economic

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unit still tended to be the family, with its financial welfare rooted in the land; lineage and the family’s land defined one’s status within a close community where almost everyone was known. Ethical ambiguities always existed. For example, the prototypical Quaker “family farmers” of Pennsylvania often had to sell surplus wheat to the slave-holding West Indies to buy enough land for their children, while population pressures in New England meant land scarcity created bitter family tensions. Also, slaves and Indians should have been, as Tucker had pointed out, reminders that the colonies could hardly claim any special landed virtue, any escape from the Augustinian political reality of sin. Still, images of the land-based family household and the robust self-producer were not a wholly distant reality, nor was an Aristotelian economy where money was no more than a convention to facilitate barter. Moreover, the perceived move in some areas toward a more commercial culture had created tensions within prevailing Protestant ideologies. In Calvinist Massachusetts Bay, for example, John Winthrop’s “Model of Christian Charity” had laid out, as if in Country-style vocabulary, a basically landbased ideal of Calvinist social justice, one that would urge hard work but leave behind the English corruptions where “all arts and trades are carried on in a deceitful manner and unrighteous corner.” He condemned competitive self-interest, and advocated a community rooted in charity: “If thy brother be in want,” he wrote, “If thou lovest God, thou must help him.”108 Anne Hutchinson and Roger Williams would later expose an underlying Massachusetts Bay dilemma: for the magistrates to try to please God by creating, coercively, a commonwealth based on charity was to try to put a whole community in a covenant of works, not free grace—as if coercion could ever bring redemption, or charity be an object of exchange with God. Winthrop beat back the theological challenge, banished the dissenters, and earnestly established restrictive trading rules. Those trading for supplies from England, for example, could charge only a fixed amount above purchase price in England, could not charge usury, and could not, by charging high prices, impose on others losses due to their own lack of trading skill. The well-known case of Robert Keayne shows the extent to which the early New England market was, in fact, constructed by religious norms. The pious merchant Keayne had demonstrated an oddly obsessive preoccupation with account-book calculations, and had thus stirred up suspicion in a society not yet used to reducing life to monetary terms. Charged with the corrupt practice of selling traded goods at too high a price, Keayne tried to explain, as one of several “misunderstandings” learned abroad, that in a value-enhancing exchange no true measure of equal exchange may be possible, so that rules setting prices by some other objective measure were counterproductive. The Catholic schoolmen had so concluded, but in more restrictive New England Keayne was compelled to admit, in church and

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civil court, both error and a corrupt heart. As with the schoolmen, however, conscience was still the key point: because he had been led to believe in “false” economic principles, he had not violated his own conscience and he was not excommunicated, as he otherwise would have been.109 Soon, however, in Boston as in other cities, merchants found themselves in a more accepting culture. Especially after the Restoration, more latitudinarian Anglicans, already a strong presence in New York, arrived in Boston and brought a less tortured “Court” view of trade. The nature of legal transactions also changed. For example, in early New England debt cases usually only an “account debt” was charged, based simply on some amount not paid, and the resolution of the case in court would turn on full jury examination of the nature of the relationship between the parties. This practice fell aside as credit became abstracted from particular relations and was made negotiable through written instruments like bonds and promissory notes.110 For many who were wedded to earlier Protestant norms and/or to neoHarringtonian Country ideology, this transition meant the urban culture had come to resemble, too closely, the Anglican, commercialized Court culture of England. By mid-century the Great Awakening exacerbated growing tensions as great spiritual revivals swept the country to emphasize, once again, the terror of God’s judgment and the saving power of grace. Anglicans, complacently emphasizing reason and “manners,” tended to mute the problem of sin and therefore to moderate any radical zeal for social transformation. By contrast, the Great Awakening rekindled a zeal for social and economic egalitarian perfectionism, as against both the Anglican gentry of the South and the emerging commercial culture of the Northern cities. Releasing the millennial perfectionist potential always lurking within Christianity, powerful preachers envisioned a new “union” of true believers, a community based not on the wealth and status of a fallen world, or even on the “works-based,” structured piety of the New England polity, but on the purity of regenerate love itself—the transformative gift of God’s mysterious grace.111 By the time of the Revolution, therefore, a spiritualized and vaguely Harringtonian antimarket politics had become, in various manifestations, part of the recent religious landscape. Then, during the war, with so many farmers operating at a semi-subsistence level, produce for troops immediately became expensive; merchants who profited from the scarcity by selling stores and equipment to the army at increasingly higher prices were denounced by Washington himself.112 The political power of the “Country” outlook thus gained added force. The period of American Confederacy, however, represented a kind of Augustinian juncture, and a crisis of political theory. As Gordon Wood has so famously described, the citizens of the new nation, the New Eden, turned

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out to be, not new republican Adams in a millenialist social union of transformative grace, but citizens of a very fallen city. Moreover, while Aristotle had described natural aristocrats who would always emerge as wise leaders, the political reality was of “[s]pecious, interested, designing men,” who were tantalizing the people with “improper indulgences” in return for votes.113 Even state senates, as well as the lower houses, allowed sectional interests to prevail, so that the spirit-infused moral unity Harrington had promised disintegrated instead into pure Hobbesian particularity. After the Articles of Confederation, moreover, Americans showed a disconcerting readiness for direct action, reseizing, as it were, sovereignty from their institutional representatives and locating it in the “natural,” pre-political people, the vaguely millenialist “people out of doors.”114 Thus crowds assembled to challenge legislation, to suppress Tories, or to demand lower prices for necessities. Shays’ Rebellion in Massachusetts in 1787 confirmed the worst of fears: republican liberty meant, not yeoman virtue, but anarchic upheaval.115 The problem, moreover, was not just one of insufficient virtue or the failure to locate “natural” aristocrats. Nor was the problem simply one of insufficiently centralized government power. Instead, leaders discovered that, ironically, a revolution based, at least in many minds, on “Country” principles had produced, in dysfunctional form, a very Court-like reality. The particular forms of legislation that alarmed the Federalists, such as expansive debt relief, unrestrained state printing of paper currency, and treaty violations were symptomatic of serious structural problems. While accounts of the Confederacy economy differ, dislocations were obvious: something “truly disastrous” was occurring.116 By the end of the Revolution the states and the national government, together, had at least a $450,000,000 debt, which they had no way to repay. Meanwhile, the large quantities of paper money issued during the war, combined with available private credit, had tempted some people to borrow in order to invest in speculative anticipation of future demand for the high-priced goods needed for war, and to speculate in land, currency, and also in debt instruments. Thus, from the Country perspective, many once-virtuous republican citizens were in fact “on their way to becoming sharpers and swindlers.” While many decent farmers had gone off to fight, others had “bask[ed] in the sunshine of monopoly, forestalling or extortion.”117 Investors, it seemed, were manipulating prices and engaging in “unproductive” profit making, based on nothing more than speculation in the fluctuation of currency valuations from state to state. The combination of high national debt and speculation in what at the time still seemed illusory values was precisely what the Country party had said lay at the heart of English corruption. Moreover, many American creditors were also merchants in overseas trade or, like George Washington himself, planters with transatlantic obligations.118 With the end of the war came lower demand for goods but con-

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tinued debt and recourse to more paper money. Payment to foreign creditors was increasingly difficult. Americans had become used to importing goods (denounced by some as “luxuries”) from England; and while direct trade with England was not shut off after the Revolution, England did close the vigorous American trade with the West Indies. One way earlier Americans had paid for English goods was to order ships to sail from the islands to England with West Indies goods and bills of exchange, received in return for American cargo. This method of payment was closed off. With English sellers refusing depreciating paper money, debts grew; and, with the states competing against each other in lowering tariffs to attract cheaper imports, a weak national government had no clout in negotiations with England to lift the West Indies ban. Meanwhile, as states tried to raise taxes to pay off debts, the people demanded more paper money, creating more value fluctuations and consequent interstate trade instability. Creditors refused to accept paper currency, buyers rioted, and armed attacks on creditors and tax collectors followed, including Shays’ Rebellion.119 Madison understood that the political problems of the new nation were in large measure market problems. “Most of our political evils can be traced to our commercial ones,”120 he explained, citing the growing trade imbalance as combined with a depreciating currency, loss of specie to England and inability to collect taxes or pay creditors. In the face of these realities, the Federalists could perhaps have tried somehow to “cleanse” the republic of its accumulated “corruptions” due to foreign trade, speculation, and national debt, for the sake of building a Christianized version of pure republican virtue. Many sermons and periodicals so urged. Instead, however, Madison, an Anglican (as were most Federalists), assiduously pored over what English and Scottish economists like Tucker and Hume had to say concerning trade, banking, national debts, and the elusive relationship between the flow of currency and the “real” economy of land and goods. He did not find easy answers, and was not as skilled with economics as Hamilton (who is said to have learned Wealth of Nations almost by heart, although Hume, as a development theorist, remained a greater influence).121 Madison did, however, find a set of moral/theological assumptions about the usefulness of a market model for balancing, or setting against each other and thereby containing, otherwise destructive appetites—whether for wealth, power, or religion. With Hume describing the (not yet quite tamed) “passion of interest” as requiring constant countervailing interests for balance, it is hardly surprising to find in The Federalist the argument that “ambition must be made to counteract ambition.”122 Madison used the word “faction,” by which he meant any one of the Augustinian appetites—except, perhaps, sex, which presumably was under the jurisdiction of the churches. Nor was the economists’ emphasis new to Madison. His most influential teacher at Princeton, John Witherspoon, was both a Presbyterian Augustin-

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ian and part of the Scottish Enlightenment. Witherspoon had once been in the influential group of erudite Edinburgh clergy, but as a strict Calvinist had been in a minority theologically. He came to America and became its leading educator, where he taught works by Enlightenment figures like Hume and saw in the new nation an opportunity to develop Augustinian paradoxes concerning the symbiotic relation between evil and good. Madison had thus learned, quite early, as a matter of theology, that governments are required precisely because people are not destined to be angels and because reason does not exist except in reciprocal relation to passion, so that so-called rational political “opinion” is not separable from faction. As he later explained, in Augustinian fashion, the “latent causes of faction are sown in the nature of man.”123 Thus the governments (and markets) human beings construct to preserve peace cannot, Harrington-style, redeem the fallen city; but they can balance factions against each other and thereby, paradoxically, bring at least some provisional good from inevitable evil. As he learned directly from Hume, an expansive network of diverse interests, widely dispersed, might actually be more stable than the republican ideal of localized unified virtue.124 Madison had also learned from religion a lesson perhaps more apparent in the colonies than in England. The attempt to unify the people through a shared conception of virtue—even the mannered virtues of Anglicanism—was a failure in a pluralist society. Where attempted, Anglican establishment had led to needless oppressions and antagonisms, and in Virginia had simply exacerbated dissenting zeal. By contrast, in colonies where toleration was the norm, like Pennsylvania and Rhode Island, even radical sects had become vigorous but stable, property-owning denominations. Attempted state control over religion had been as counterproductive as the mercantilist state control over trade that Adam Smith had criticized. Many were drawing the parallel between the evils of religious establishment and the evils of protected monopolies, and conversely, drawing the parallel between a free market in religion and a free market model for government and commerce generally. A legally protected diffusion of interests and factions might, paradoxically, produce more social good than unity in the name of an overarching conception of religious/political truth.125 The resulting Constitution would sometimes be described as a surrender on two fronts: Lockean naturalism gave way to the Anglican artificiality of a legally constructed set of contingent human institutions; and pure republican participation and virtue gave way to a Hobbesian one-time alienation of sovereignty—the defeat of shared values. Yet, Madison was an Anglican and knew from Richard Hooker how to describe the concededly artificial in theological terms. By sleight of hand, Madison presented constitutionalism as if it were, in fact, a kind of political transubstantiation: a text written by a particular group of people in the particularity of historical time became

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the corporate act of a Sovereign People whose continuity and authority transcended the mortality of individual human beings.126 The resulting exchange was presented as a Gift. Perhaps not surprisingly, a few decades later, Emerson, entranced by the relation between nature and commodity as similar symbolic systems, found himself declaring “Let us learn the meaning of economy” for it is “a sacrament.”127

PART IV There seems more than a slight parallel between the Madisonian moment of constitutionalism and the Bretton Woods founding of the international economic order. Indeed, one way to understand the Bretton Woods period is to see it as yet another Augustinian juncture, when the dark reality of the human capacity for evil was even more abundantly clear than it was during the early days of the American republic. In a kind of downward spiral, the protectionist, colonizing policies of aggressive nation-states had apparently led to economic disaster, world war, a spirit of revenge, and finally Nazism as the ultimate “politics of meaning.” In the sober aftermath of the world wars, moreover, Marxism offered, in effect, a secular version of millenialist perfectionism,128 with the proletariat as the new, purified version of the chosen remnant, the potentially universal Body of Christ. Eventually the proletariat would realize itself in a new kingdom, a secular City of God, with no property and no state. Human alienation would end as the worker, redeemed by communism, realized his true nature as species being—the secular version of the New Adam. As if by instinct, the Bretton Woods founders rejected this promise of perfectionism. John Maynard Keynes explained the alternative Bretton Woods goal in decidedly Madisonian terms: Dangerous human proclivities can be canalized into comparatively harmless channels by the existence of opportunity for money-making and private wealth, which, if they cannot be satisfied in this way, may find their outlet in cruelty, the reckless pursuit of personal power and authority, and other forms of self-aggrandizement. It is better that a man should tyrannize over his bank balance than over his fellow-citizens; and whilst the former is sometimes denounced as being but a means to the latter, sometimes at least it is an alternative.129

Notably, Amartya Sen has recently affirmed the continuing relevance of that view, as a plausible justification for markets that is “altogether different from what comes via General Equilibrium Theory.”130 To view markets thus, as a concession to an imperfect world, might help to explain the shallowness of many recent debates (and demonstrations)

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over market globalization. On one side, defenders of global markets seem oddly blind to the market’s ruthless and often flamboyant disregard for ethical or spiritual values, a disregard Augustine identified so many centuries ago. On the other hand, opponents seem blind to the limits of economic (and human) perfectibility, as if with just a little less selfishness we could make of the economy an embodiment of egalitarian, communitarian ideals. Being more theologically serious about global markets might start with something like an initial Augustinian critique, as implicitly suggested by David Westbrook’s recent suggestively titled (and muted) defense of globalization, City of Gold.131 An Augustinian critique begins with an ethical examination of founders, who serve as metaphorical embodiments of the cities they originate. Augustine famously juxtaposed the City of God, founded by the self-emptying sacrifice and boundless love of Christ, to the City on Earth, originating in the fratricidal stories of Cain and Abel and Romulus and Remus. Those violent fratricidal origins symbolized for Augustine the inevitability of conflict in the worldly city; its foundation was in pride and conquest, and the peace it achieved was no more than a truce maintained by the sin of coercive force. Notably, the founders of postwar global capitalism at Bretton Woods also sought peace, and, quite strikingly, did so by means other than fratricidal conquest. While World War I had ended with continued obsessive nationalism and disastrous revenge by way of reparations, the Bretton Wood goal was to tame nationalist fervor, almost, it seemed, by the exercise of charity and hospitable inclusion—by aid to rebuild the economies of former foes as well as allies, and by the eager embrace of Japan and Germany in an expanding global marketplace. Indeed, the purpose was explicitly the old Anglican one of countering nation-state fervor by translating political into economic interests, and then diffusing those interests broadly across national boundaries, with the old Catholic vision of the universal economy an implicit goal. As in the medieval period, that vision would, as well, by necessary implication contain and exclude the threat of perfectionist millennialism. Arguably, there was some shallowness to this Bretton Woods vision. Like some of their Anglican (and moderate Presbyterian) forbearers, the Bretton Woods trade bureaucrats largely identified with a culture of civilized “manners.” However broadly “manners” might be defined, the complacent outlook it engendered had limitations, and those limitations have often marked the character of the Bretton Woods institutions. Not surprisingly, gentleman trade bureaucrats have not easily, for example, identified with the dispossessed of the world, and they would prefer to deal with lowering tariffs or stabilizing exchange rates than to engage with broader social or spiritual concerns: equality, accountability, stewardship of nature, respect

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for human personhood, or the corrosive effects of excessive materialism. Many theologians as well as progressive secular intellectuals thus find them frustrating, or even contemptible, in their apparently complacent indifference to far-reaching ethical questions. Nor are spiritual concerns about a market society necessarily shallow ones, as a quickly sketched Augustinian critique of the global market might help to illustrate. Augustinian political critique operates on least at two levels—epistemological and ethical/theological—and both are applicable to global market economics. At the epistemological level, Augustine understood that political ideology is almost always about some claim to final truth—to the authority, for example, of reason, history, text, or nature. As a linguistic skeptic (admired by Wittgenstein), he insisted on puncturing any propositional claims to certainty, or any reference to reified categories that are only human constructions made to appear transcendental (like the supposedly collective unity of the Roman people). One danger of market theory is a similar idolatry—an inflated faith in its ultimate truth and in the existence of markets as reified, abstracted forms (the Market) rather than as particular markets constructed more or less successfully in particular historical contexts and according to variable rules to serve particular purposes.132 The undeniable usefulness of neoclassical, consumer-focused economic mathematical modeling reinforces that illusion of certainty while concealing a peculiarly indeterminate reality. The indispensable language of economics is price. Many argue that the absence of prices as signals was a key factor in the wreckage of the economies of the former Soviet bloc, and there seems no reason to dispute that argument. Yet prices, perhaps even more than words, constitute an oddly elusive language. As with words, there is no objective, necessary relation between an object and its price. As antitrust students learn on the first day of class, each buyer may have a different reservation price for the same object; moreover, supposedly objective price comparisons are often indeterminate because named categories of consumer goods can break down into an only arbitrarily limited number of subcategories (how comparable are corn flakes and raisin bran or even two different brands of corn flakes?). From the seller’s perspective, of course, price is in large part a function of the seller’s own market power, not any quality inhering in the object itself. Marx built a whole theory of economic justice on a (neo-Aristotelian) conception of “real” value, but he seems to have been simply wrong, as even early Catholic schoolmen would have recognized. Also more than with words, price is a result of conflict, not cultural consensus. Buyer and seller try to pay as little or charge as much as possible. In many contexts, each is betting that the other has made a false prediction about future prices. In that sense any current price is simply a temporary truce in an ongoing series of contests. That is why the schoolmen were so surprised by the “gift” of value-enhancement, which emerged from within the conflictual,

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and therefore sinful, nature of exchange. In a broader sense, price is also not separable from politics. As Augustine had pointed out, economics is derivative of power relations and therefore equally contingent. Market exchange is a function of a complex set of legal and political relationships and prices, in turn, attach not just to concrete objects, but now to bundles of legal relations of dizzying complexity, even more elaborately constructed than the financial fabrications the Country party in England (and Marx) found so alienating. Nevertheless, the language of price is also crude, capable of saying no more than “I want.” It is like a hand raised at an auction, incapable of suggesting, even imperfectly, ideas, hopes, human experience, or the promise of redemption. Price, after all, uses only the vocabulary of money, which in turn is a floating signifier, about anything, or nothing. Indeed, money can be described as a kind of pure (universal) means whose value lies only in its capacity to achieve a (particular) end, the purchase of property. The process of exchange is thus, as Westbrook describes, an ongoing dialectic between money and property. In that dialectic, however, money seems to have an odd edge as colonizer. Property is valued—even defined—by its exchangeability, its capacity to be converted into money; that language of money then tends to wipe out other meanings and other, less commensurable values. Everything has a price; what it does not, seems worthless. Thus, as Aristotle feared so long ago, a mere social convention designed to be only a means to other ends becomes, almost inevitably, an ultimate end in itself. Money’s absolute emptiness, its complete “no-thingness,” makes it the God-like universal by which all else is measured.133 At the level of social morality, markets are caught up in the same contradictions Augustine identified in politics, but in more diffuse and displaced fashion. No less than the medieval universal Christian market from which it evolved, the western global market rests on a history of conquest and compelled conversion, even though, in the market itself, the always unsatisfied lust for dominion is exercised over things rather than directly over people. Our current conflicts with those who refuse the peace of integrated global markets underscore that implicit element of conquest. Meanwhile, the flamboyant production of goods that markets engender still recognizes no ethical limit; it seems to bind us to the (false) necessity of yet more production. Moreover, the supposed freedom that unlimited production promises, the liberty to purchase and own, is by legal definition the liberty to exclude others, to draw boundaries backed by coercive state power—always an act of alienation, the antithesis of community and true Christian freedom. Thus a global polity based on markets can never hope to approximate the Body of Christ, that strange yearning that runs through so much of Western political thought. Markets bring people together, as Court Anglicans predicted, in an extraordinary new global community, but they do so only by alienating us from each other.

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The political decision further to institutionalize global markets in the post-World War II period was a decision to accept that alienation as rooted in the human condition, as a price to be paid for the sake of global integration, for an end to nationalist territorial conquest and for the very real benefits of material well-being. It was, in that sense, a profoundly theological choice, if not so identified at the time, a choice against the Marxist perfectionist, millenialist promise to vanquish those troubling realities that Augustine had identified as powerful signs of a fallen world—property, domination, and human alienation itself. It is now common to ask whether one should be “for” or “against” global markets, as if their elimination were an available political option. From an Augustinian perspective, perhaps that is the wrong question. Like other coercions of the fallen cities that construct them, markets are, from a Christian perspective, of course, a sign of sin. The City of God can never be envisioned as that always elusive economists’ goal, a perfect market. Nevertheless, markets are part of the current reality; global capitalism is the particular fallen city within which most people now find themselves enmeshed. The promise of freedom Augustine held out was not the promise that the fallen city would itself be redeemed anytime soon, but that the habits of thought and desire that enslave the prideful self to the city’s illusions and idolatries could be dissolved. New beginnings were always possible. That promise was the promise of grace, and its signs were everywhere. Even a fallen world, Augustine insisted, was shot through with signs of hope, and the promise of grace could suddenly appear in the most unexpected of places—as the schoolmen discovered, even in market exchange itself, where one discovers, amazingly, an unearned gift. In this fallen world, sin and grace are radically intermixed. For that reason an Augustinian perspective thus demands that one often hold together, simultaneously, utterly contradictory ideas, even though the current culture is more comfortable with linear propositional argument and direct either/or choices. The promise of grace, however, is also a promise about one clear ontological priority, which, paradoxically, can only be manifested through the exercise of human freedom. Ontologically, peace is prior to conflict, caritas is prior to cupiditas, and selfless love is prior to boundaries—but only because of the impossible possibility of a Gift so perfect its story (almost) cannot be told.

NOTES The author wishes to thank Guyora Binder, Rebecca French, Len Kaplan, Errol Meidinger, Rob Steinfeld, Lois Stutzman, David Westbrook, and Jim Wooten for valuable advice and help.

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1. Richard John Neuhaus, The Naked Public Square: Religion and Democracy in America (Grand Rapids, Mich.: Eerdmans, 1984). 2. Stephen L. Carter, The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion (New York: Basic Books, 1993). 3. Peter L. Berger, The Sacred Canopy: Elements of a Sociological Theory of Religion (Garden City, N.Y.: Doubleday, 1967). 4. Will Herberg, Protestant Catholic Jew: An Essay in American Religious Sociology (Garden City, N.Y.: Doubleday, 1955). 5. Rebecca R. French, “Shopping for Religion: The Change in Everyday Religious Practice and Its Importance to the Law,” Buffalo Law Review, 51 (2003), 127. 6. See, e.g., John Rawls, Political Liberalism (New York: Columbia University Press, 1993); and Bruce Ackerman, Social Justice in the Liberal State (New Haven, Conn.: Yale University Press, 1980). 7. See, e.g., John Milbank, Theology and Social Theory: Beyond Secular Reason (Cambridge, Mass.: B. Blackwell, 1990); James Block, “Modern Exemplar or Universalist Fallacy: Assessing Liberalism’s Quest to Excise the Theological,” paper given at the conference, “The Place of Theology and the Liberal State in the Globalized World,” University of Wisconsin-Madison, October 11–12, 2002; Stephen Carter, “Liberal Hegemony and Religious Resistance: An Essay on Legal Theory,” in Michael W. McConnell, Robert F. Cochran, Jr., and Angela C. Carmella, eds. Christian Perspectives on Legal Thought (New Haven, Conn.: Yale University Press, 2001), 25–53; and Michael McConnell, “Old Liberalism, New Liberalism, and People of Faith,” (New Haven, Conn.: Yale University Press, 2001), 5–24. 8. See, e.g., Alasdair MacIntyre, After Virtue: A Study in Moral Theory (Notre Dame, Ind.: University of Notre Dame Press, 1981); Harold Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, Mass.: Harvard University Press, 1983); Brian Tierney, The Idea of Natural Rights: Studies on Natural Rights, Natural Law and Church Law 1150–1625 (Atlanta: Scholars Press, 1997); see also McConnell, “Old Liberalism, New Liberalism”; J. Powell, “The Earthly Peace of the Liberal Republic,” Christian Perspectives, 73–92; and Mensch, “The Roots of Liberalism,” Christian Perspectives, 54–72. 9. Philip Jenkins, The Next Christendom: The Coming of Global Christianity (New York: Oxford University Press, 2002). The failure of the so-called “secularization thesis” is well described in L. Iannoccone, “Introduction to the Economics of Religion,” Journal of Economic Literature, 36 (1998), 1465, 1468–1472, which reviews the relevant literature. 10. As described and quoted by John D. Caputo and Michael J. Scanlon, “Apology for the Impossible: Religion and Post-Modernism,” in John D. Caputo and Michael J. Scanlon, eds., God, the Gift, and Postmodernism (Bloomington, Ind.: Indiana University Press, 1999), 4–5. Jeffrey Stout, Democracy and Tradition (Princeton, N.J.: Princeton University Press, 2004) may have introduced a fresh perspective on the general question of religion’s role in democracy. Notably, Stout, from a pragmatist perspective, closes his book with the metaphor of a river, not spheres. 11. See Iannoccone, “Introduction to the Economics of Religion,” on the reluctance of economists. On continuing Christian reluctance to discuss money, see Christian Century (Feb. 8, 2003), describing money as the “last Christian taboo” and suggesting it be brought “out of the closet” (cover, 3). On the increasing aware-

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ness of the actual institutional and ideological interrelationship between modern American religion and markets, embraced by some churches, see, e.g., S. Warner, “Work in Progress: Toward a New Paradigm for the Sociological Study of Religion in the United States,” American Journal of Sociology, 98:5 (1993), 1044; R. Laurence Moore, Selling God: American Religion in the Marketplace of Culture (New York: Oxford University Press, 1994); Leigh Schmidt, Consumer Rites: The Buying and Selling of American Holidays (Princeton, N.J.: Princeton University Press, 1995). On the theological basis for a conception of separate spheres see Nicholas Wolterstorff’s chapter in this volume. My own preference is for a conception of interdependent, interrelated coordinate realms of authority, distinguishable not by predetermined ontological distinction, nor by the simple modern conception of neutral, amoral specialization, but by the differences in the loves they are designed to engender and reinforce (power, wealth, or a vision of “the good”). 12. For one striking exception to that observation, see Leo Ribuffo, “Jesus Christ as Business Statesman: Bruce Barton and the Selling of Corporate Capitalism,” American Quarterly, 33 (1981), 206, describing Barton’s claim that Christ was a model businessman. See also Stephen Prothero, American Jesus: How the Son of God Became a National Icon (New York: Farrar, Straus and Giroux, 2003), 101–115. 13. See e.g., Jerry Z. Muller, The Mind and the Market: Capitalism in Modern European Thought (New York: Alfred A. Knopf, 2002), 10–11; James Buchanan, Frozen Desire: The Meaning of Money (New York: Farrar, Straus and Giroux, 1997), 36–49; Lester K. Little, Religious Poverty and the Profit Economy in Medieval Europe (Ithaca, N.Y.: Cornell University Press, 1978), 54–55. 14. Peter Robert Lamont Brown, The Body and Society: Men, Women, and Sexual Renunciation in Early Christianity (New York: Columbia University Press, 1988); especially 10–12, 62, 83–84; see also R. A. Markus, The End of Ancient Christianity (Cambridge, Eng.: Cambridge University Press, 1990), 81–82. 15. Quoted in R. Dodaro, “Loose Cannons: Augustine and Derrida on Their Selves,” in Caputo and Scanlon, eds., God, the Gift, and Postmodernism, 100n1. Derrida’s Circumfession mimics Augustine’s Confessions and draws on parallels in their lives, engaging with Augustine as one to be escaped yet also as one with whom Derrida identifies himself. On the difficulty of fully appropriating Augustine for postmodernism, see W. Hankey, “Self-knowledge and God as Other in Augustine: Problems for a Postmodern Retrieval,” Bochumer Philosophisches Jahrbuch für Antike und Mittalter, 4 (1999), 83–120. 16. See John Rist, Augustine: Ancient Thought Baptized (New York: Cambridge University Press, 1994), 173–75. 17. Augustine, The City of God Against the Pagans, ed. and trans. R. W. Dyson (New York: Cambridge University Press, 1998), 146. 18. Quoted in Rist, Augustine, 225. 19. The influence of this Augustinian point is described in Jacob Viner, Essays on the Intellectual History of Economics, ed. Douglas A. Irwin (Princeton, N.J.: Princeton University Press, 1991), 40. 20. Augustine, City of God, 1161–62. For morality, like accumulation, as complicity with death, see John Milbank, “Can Morality Be Christian?” in The Word Made Strange (Oxford, U.K.: Blackwell, 1997), 219–31. That complicity is escaped only by first “receiving from the all-sufficiency of God,” and then, ceasing to “be

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self-sufficient in the face of scarcity,” by instead “acting excessively out of this excess.” (Milbank, “Can Morality Be Christian?” 231). For Augustine on the limitations imposed by language, see Rist, Augustine, 23–40. 21. Markus, End of Ancient Christianity, 77–81, 176–77. 22. Dodaro insists that this consistent refrain in Augustine represents “the essential insight, the starting point,” “Loose Cannons,” 93. 23. On the “problem” of the gift, see Jacques Derrida, Given Time: 1. Counterfeit Money, trans. Peggy Kamuf (Chicago: University of Chicago Press, 1992) and The Gift of Death, trans. David Wills (Chicago: University of Chicago Press, 1995). See also Caputo and Scanlon, eds., God, the Gift, and Postmodernism; and Robyn Horner, Rethinking God as Gift: Marion, Derrida, and the Limits of Phenomenology (New York: Fordham University Press, 2001), with an emphasis, drawing on Derrida, on moving forward in relation to God and gift-giving, even though both represent an “aporia” that human thought cannot traverse. 24. See, e.g., Otto Gierke, Political Theories of the Middle Age, trans. F. W. Maitland (Cambridge, Eng.: Cambridge University Press, 1900), 4–22; Berman, Law and Revolution, 132–43, 163–64. 25. Steven Ozment, The Age of Reform 1250–1550: An Intellectual and Religious History of Late Medieval and Reformation Europe (New Haven, Conn.: Yale University Press, 1980), 99. 26. Ozment, The Age of Reform, 101. 27. Ozment, The Age of Reform, and Norman Cohn, The Pursuit of the Millennium: Revolutionary Messianism in Medieval and Reformation Europe and Its Bearing on Modern Totalitarian Movements, 2nd ed. (New York: Harper Torchbooks/The Academy Library, 1961), 62–63, 99–107. 28. Ozment, The Age of Reform, 111–12. 29. Ozment, The Age of Reform, 113n105. 30. Ozment, The Age of Reform, 114. 31. This process is traced in detail in Tierney, Idea of Natural Rights. 32. Odd Inge Langholm, Economics in the Medieval Schools: Wealth, Exchange, Value, Money and Usury According to the Paris Theological Tradition 1200–1350 (Leiden: E.J. Brill, 1992), 263–65. See also, Guyora Binder and Robert Weisberg, Literary Criticisms of Law (Princeton, N.J.: Princeton University Press, 2000), which describes the creation of new aesthetic categories that helped people “redeem their sense of social identity” (507) during capitalist development in Renaissance England. 33. Buchan, Frozen Desire, 29. 34. Langholm, Economics in the Medieval Schools, 264. 35. Little, Religious Poverty, 34. 36. Langholm, Economics in the Medieval Schools, 567. Langholm comments that we owe to the Franciscans and other perfectionist mendicants the impetus the schoolmen felt to “prepare a basis for positive economic analysis.” 37. Langholm, Economics in the Medieval Schools, 571–72. 38. Langholm, Economics in the Medieval Schools, 573–74. 39. Augustine, City of God, 470. 40. Jacob Viner, Religious Thought and Economic Society: Four Chapters of an Unfinished Work by Jacob Viner, eds. Jacques Melitz and Donald Winch (Durham, N.C.: Duke University Press, 1978), 82–83.

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41. Quoted in Langholm, Economics in the Medieval Schools, 576. 42. Langholm, Economics in the Medieval Schools, 576. 43. Langholm, Economics in the Medieval Schools, 581; Viner, Religious Thought, 81–85. 44. Little, Religious Poverty, 180. 45. Little, Religious Poverty, 180. 46. Little, Religious Poverty, 179–83; Viner, Religious Thought, 85–99. See also John Thomas Noonan, The Scholastic Analysis of Usury (Cambridge, Mass.: Harvard University Press, 1957) and, for an especially concise summary, “Tokos and Atokion,” Natural Law Forum, 10 (1965), 215–35. 47. For a similar emphasis, see Philippe Nemo, “The Invention of Western Reason,” in Berit Brogaard and Barry Smith, eds., Rationality and Irrationality, Acts of the 23rd International Wittgenstein Symposium (Vienna: ÖbvetHpt Verlagsgesellschaft, 2001). I see this as consistent with viewing legal, and economic, categories as cultural, aesthetic creations. See Binder and Weisberg, Literary Criticisms of Law. 48. Little, Religious Poverty, 3–12. 49. J. Gilchrist, The Church and Economic Activity in the Middle Ages (London: Macmillan, 1969), 3; quoted in Robert B. Ecklund, et al., Sacred Trust: The Medieval Church as an Economic Firm (New York: Oxford University Press, 1996), 8. 50. For the rapid expansion of international trade, see, e.g., Little, Religious Poverty, 10. For the importance of the doctrine of the universal economy, see Viner, Essays on the Intellectual History of Economics, 16, 49. 51. Sidney Oldall Addy, Church and Manor: A Study in English Economic History (London: G. Allen & Co., 1913), 321–24. 52. Little, Religious Poverty, 65. 53. Little, Religious Poverty, 65. 54. Ecklund, et al., Sacred Trust, 52; Buchan, Frozen Desire, 54. 55. Little, Religious Poverty, 65. 56. Buchan, Frozen Desire, 66–72. 57. Lisa Jardine, Worldly Goods: A New History of the Renaissance (New York: Nan A. Talese, 1996), 9–12. 58. Jardine, Worldly Goods, 21. 59. Addy, Church and Manor, 328. 60. Addy, Church and Manor, 350. 61. Little, Religious Poverty, 26–27; Berman, Law and Revolution, 165–224. 62. Little, Religious Poverty, 27, and Jardine, Worldly Goods, 260–61. 63. Addy, Church and Manor, 221. 64. Addy, Church and Manor, 209; Viner, Religious Thought, 46–47. 65. Ecklund, et al., Sacred Trust, 67. 66. See Berman, Law and Revolution, 247. 67. Viner, Religious Thought, 47. 68. Jardine, Worldly Goods, 325. 69. Berman, Law and Revolution, 348–54. 70. Berman, Law and Revolution, 351. 71. Berman, Law and Revolution, 354; Sir Frederick Pollock and Frederic W. Maitland, The History of English Law Before the Time of Edward I, 2nd ed., reissued

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(London: Cambridge University Press, 1968), 501; Frederick Maitland, Selected Essays, ed. H. D. Hazeltine et al. (Cambridge, Eng.: Cambridge University Press, 1936), 73–103. 72. Viner, Religious Thought, 85. 73. This is the thesis of Ecklund et al., Sacred Trust. 74. Jardine, Worldly Goods, 114–18; Viner, Religious Thought, 45n4. 75. Quoted in Ecklund, et al., Sacred Trust, 165. 76. Jardine, Worldly Goods, 343–47; Ernst H. Kantorowicz, The King’s Two Bodies: A Study in Medieval Political Theology (Princeton, N.J.: Princeton University Press, 1957), describes in detail the legitimation of rulers and law through use of Christological categories borrowed from papal tradition. 77. Stephen Innes, Creating the Commonwealth: The Economic Culture of Puritan New England (New York, W. W. Norton, 1995), 301. 78. Muller, Mind and the Market, 12; Berman, Law and Revolution II: The Impact of the Protestant Reformations on the Western Legal Tradition (Cambridge, Mass.: Belknap Press of Harvard University Press, 2003), 162–63. 79. Ecklund, et al., Sacred Trust, 174; Berman, Law and Revolution II, 162–63; Peter Spufford, Power and Profit: The Merchant in Medieval Europe (New York: Thames & Hudson, 2003), 411–12. 80. Howard Horwitz, By the Law of Nature: Form and Value in Nineteenth-Century America (New York: Oxford University Press, 1991), 5. 81. See J. G. A. Pocock, Politics, Language and Time: Essays in Political Thought and History (New York: Atheneum, 1971), 148–201; Berman, Law and Revolution II, 175. 82. See Rist, Augustine, 173–75. Delight or abhorrence are the possible (opposite) responses of affectus; the conception seems close to Hobbes on attraction and aversion. 83. Quoted in Muller, Mind and the Market, 28. 84. Albert O. Hirschman, The Passions and the Interests: Political Arguments for Capitalism Before Its Triumph, 20th Anniversary ed. (Princeton, N.J.: Princeton University Press, 1997), 69–113. 85. J. G. A. Pocock, Virtue, Commerce, and History: Essays on Political Thought and History, Chiefly in the Eighteenth Century (New York: Cambridge University Press, 1985), 123. 86. Pocock, Virtue, Commerce, and History, 139. 87. On Harrington, see J. G. A. Pocock, “Introduction,” The Political Works of James Harrington (New York: Cambridge University Press, 1977); on the civic humanist tradition, J. G. A. Pocock, The Machiavellian Moment: Florentine Political Thought of the Atlantic Republic Tradition (Princeton, N.J.: Princeton University Press, 1975). 88. Stanley Elkins and Eric Mckittick, The Age of Federalism (New York: Oxford University Press, 1993), 20. See generally, Bernard Bailyn, Ideological Origins of the American Revolution (Cambridge, Mass.: Belknap Press of Harvard University Press, 1967). 89. Muller, Mind and the Market, 13. 90. See W. C. Diamond, “Natural Philosophy in Harrington’s Political Thought,” Journal of the History of Philosophy, 16 (1978), 396–97. 91. C. B. Macpherson, The Political Theory of Possessive Individualism: Hobbes to Locke (Oxford: Clarendon Press, 1962).

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92. Pocock, Virtue, Commerce and History, 223–7. 93. Pocock, Virtue, Commerce and History, 69. 94. Pocock, Virtue, Commerce and History, 164. 95. See Mensch, “Images of Self and Images of Polity in the Aftermath of the Reformation,” Graven Images, 3 (1996), 249, 256–261. 96. Mensch, “Images of Self and Images of Polity in the Aftermath of the Reformation,” 259. 97. Mensch, “Images of Self and Images of Polity in the Aftermath of the Reformation.” 98. See Mensch, “Images of Self and Images of Polity in the Aftermath of the Reformation,” 259–61. 99. Pocock, Virtue, Commerce and History, 67–71. 100. Quoted in Muller, Mind and the Market, 51. 101. Terence Hutchinson, Before Adam Smith: The Emergence of Political Economy, 1662–1776 (New York: B. Blackwell, 1988), 230. 102. Hutchinson, Before Adam Smith, 237. 103. Hutchinson, Before Adam Smith, 237. 104. Quoted in Arthur Herman, How the Scots Invented the Modern World: The True Story of How Western Europe’s Poorest Nation Created Our World and Everything in It (New York: Crown Business, 2001), 104. 105. As cited by Regenia Gagnier, The Insatiability of Human Wants: Economics and Aesthetics in Market Society (Chicago: University of Chicago Press, 2000), 22n5, and see 21–27. See also Herman, How the Scots Invented, 189–226; Elkins and Mckitrick, Age of Federalism, 107–113. 106. For the classic study, see Bailyn, Ideological Origins. 107. James Henretta, The Origins of American Capitalism: Collected Essays (Boston: Northeastern University Press, 1991), 90–93. 108. Henretta, The Origins of American Capitalism, 49. 109. Winthrop’s Journal, “History of New England” 1630–1649, James Kendall Hosmer, ed., 2 vols. (New York: C. Scribner’s Sons, 1908), 184–88; Innes, Creating the Commonwealth, 184–88. 110. Henretta, Origins of American Capitalism, 68. 111. See, e.g., Alan Taylor, American Colonies (New York: Viking, 2001), 344–62. 112. Henretta, Origins of American Capitalism, 232, 240. 113. Gordon Wood, The Creation of the American Republic 1776–1787 (Chapel Hill, N.C.: Published for the Institute of Early American History and Culture by the University of North Carolina Press, 1989), 476–77. 114. Wood, The Creation of the American Republic, 319. See also, Edmond Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America (New York: W. W. Norton, 1988), 257. 115. Joyce Appleby, “The American Heritage: The Heirs and the Disinherited,” Journal of American History, 74 (1987), 798. 116. John J. McCusker and Russell Menard, The Economy of British America, 1607–1789 (Chapel Hill, N.C.: Published for the Institute of Early American History and Culture by the University of North Carolina Press, 1985), 373. 117. Janet Riesman, “Money, Credit, and Federalist Political Economy,” in Richard Beeman, et al., Beyond Confederation: Origins of the Constitution and American

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National Identity (Chapel Hill, N.C.: Published for the Institute of Early American History and Culture by the University of North Carolina Press, 1987), 131. 118. Gordon Wood, “Interest and Disinterestedness in the Making of the Constitution,” in Beeman, et al., Beyond Confederation, 106. 119. Stuart Bruchey, “Social and Economic Developments After the Revolution,” in Jack P. Greene and J. R. Pole, eds., The Blackwell Encyclopedia of the American Revolution (Cambridge, Mass.: Blackwell Reference, 1991), 558–59. 120. Bruchey, “Social and Economic Developments After the Revolution,” 559. 121. Herman, How the Scots Invented, 260; Elkins and Mckitrick, Age of Federalism, 107–13. 122. Hirschman, Passions and the Interests, 37. 123. Quoted in Robert Calhoon, “The Religious Consequences of the Revolution,” in Greene and Pole, eds., Blackwell Encyclopedia of the American Revolution, 573. 124. Douglass G. Adair, “That Politics May Be Reduced to Science: David Hume, James Madison, and the Tenth Federalist,” in Jack P. Greene, ed., The Reinterpretation of the American Revolution (New York: Harper & Row, 1968), and Arthur O. Lovejoy, “The Theory of Human Nature in the American Constitution and the Method of Counterpoise,” in Greene, ed., Reinterpretation of the American Revolution, 469. 125. Elkins and Mckitrick, Age of Federalism, 84. 126. See Mensch, “Images of Self.” 127. Quoted in Horwitz, By the Law of Nature, at 73. 128. See Cohn, Pursuit of the Millennium, for those linkages, both with respect to Nazism and, especially, Marxism. 129. Quoted by Hirschman, Passions and the Interests, 129. 130. Sen, “Introduction” to Hirschman, Passions and the Interests, xii–xiii. Hirschman himself is critical of the complacency of Keynes’s repetition of old arguments. Sen argues that, “while connections are far from simple and contingent on circumstance,” at least in the long run there is “some sense in the thought that the interested pursuit of trade and commerce—accompanied by sales documents—does not, typically, combine well with the passionate pursuit of perceived enemies— accompanied by machetes and other assault weapons” (xiii.). 131. David Westbrook, City of Gold: An Apology for Global Capitalism In a Time of Discontent (New York: Routledge, 2004), from which I draw some of the following points. Westbrook himself, however, disavows an explicitly Augustinian approach or critique. 132. See e.g., John McMillan, Reinventing the Bazaar: A Natural History of Markets (New York: W. W. Norton, 2002). Arguably, whatever the soundness of his particular criticisms, Joseph Stiglitz is making a similar general point in Globalization and Its Discontents (New York: W. W. Norton, 2002). 133. The analogy between God and money was drawn by Georg Simmel. See David Loy, A Buddhist History of the West: Studies in Lack (Albany, N.Y.: State University of New York Press, 2002), 184–85.

6 When Markets and Gambling Converge David A. Skeel, Jr.

Several years ago, two friends from the church I belong to1—a counselor and a trombone player—were walking onto a casino floor that they had to cross to check into their respective rooms in a large Las Vegas casino hotel. The two were part of a group that had traveled to Las Vegas for a series of musical performances at an evangelical Christian booksellers’ conference. In the cacophony of bells, chimes, and other noises, the trombonist heard an unexpectedly familiar tune. The first three chimes of the slot machines were precisely the same notes as the opening of Martin Luther’s most famous hymn. “A mighty fortress is our God,” the trombone player sang. The counselor then added her voice to his, the two of them singing louder and louder as they passed the card tables and slot machines. “Our helper, He,” they sang at the top of their lungs, “amid the flood/Of mortal ills prevailing.” A few years earlier, during his successful run for president, Ronald Reagan made a much-covered appearance at an annual meeting of America’s most prominent Protestant evangelical leaders. Referring to the leaders’ formal policy of refraining from endorsing particular political candidates, Reagan said: “You can’t endorse me, but I endorse you.” Now, these vignettes may not seem to have much in common, and in some respects they do not. Together, however, they reveal an important tension within evangelical Christians’ views on financial issues. Reagan’s ability to “endorse” the evangelicals—which reflected his confidence that they implicitly endorsed him—stemmed in part from their shared commitments on abortion and other social issues. But it also reflected his knowledge that they, like Reagan himself, were deeply committed to free markets—to an economic system that relies on the private decisions of private actors rather 161

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than the government to allocate resources. A few years later, when evangelist Pat Robertson challenged incumbent President George H. W. Bush for the Republican presidential nomination, he made free market economics a centerpiece of his surprisingly effective campaign. (“I’m a dyed-in-the-wool advocate of free market individual enterprise,” Robertson told Sam Donaldson in a subsequent “Primetime Live” interview.2) More recently, Colorado megachurch pastor Ted Haggard, who spoke frequently with President George W. Bush, extolled free markets as the best solution to poverty and other social ills. “Free markets,” he enthused, “have done more to help poor people than any benevolent organization ever has.”3 While evangelicals’ stance toward markets has a rather libertarian tone, there is nary a whiff of libertarianism when it comes to gambling. Evangelicals have been the principal opponents of the lotteries nearly every state has put in place in the past three decades. Evangelicals also have actively opposed other efforts to expand legalized gambling, such as the recent movement to add slot machines to racetracks. If I had omitted the references to my friends’ church affiliation in the opening vignette and simply described two people singing defiantly as they crossed a casino floor, I suspect that most readers would have assumed that the singers were evangelical Christians. The tension, of course, is that markets are not all that easy to differentiate from gambling. Even the most frequently praised attribute of markets—the “allocative” benefits of market pricing—has gamblinglike qualities. What economists mean when they talk about “allocative efficiency” is that investors bid up the stock price of promising companies, and they tend to steer clear of less promising companies. As a result, good companies find it easier to raise money in the marketplace; the companies with the best business prospects are the ones that are most likely to be well financed. When the state makes these decisions, by contrast, it usually does a poor job of deciding which businesses get financing. All this sounds well and good. But gambling—or its first cousin, speculation4—comes in as soon as one shifts from this abstract description to the transactions that underlie it—the specific actions of specific investors. The stock price of any given company emerges from the decisions of myriad investors who are betting that the value will go up or down, much as blackjack players bet on the outcome of a hand of blackjack. Market economics and gambling can be distinguished in important respects, and I will explore these distinctions in due course. But the similarities are at least as striking. Large numbers of investors are, at bottom, betting on uncertain outcomes in much the same way as gamblers who patronize casinos or buy lottery tickets. When we get to day-trading, moreover—that is, traders who rapidly buy and sell stocks, and generally close out all of their positions by the end of the day—we are looking at gambling, pure and simple.

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My suggestion that markets look a lot like gambling is not a novel idea. Indeed, the newspapers frequently use gambling metaphors (that investors are “betting” on a recovery, that a particular stock is a “long shot”) to describe market behavior. The bursting of the late 1990s stock market bubble, and the corporate scandals and market woes the United States experienced at the outset of the new century, have made the similarities impossible to miss. It also is not particularly surprising that evangelical Christians are hostile to gambling, much as their forbears were. Somewhat less clear is why evangelicals so fervently defend free markets. To understand the longstanding link between evangelicals and market-based economics, we will need to step back for a moment to the early years of the Republic. We then can explore some of the tensions between this enthusiasm for markets, on the one hand, and the urge to prohibit gambling, on the other. I will suggest that evangelicals have sometimes expected too much from the law—from legal intervention—when it comes to racetrack slots and Internet gambling, and too little in the world that gave us Enron and WorldCom. The common theme is the question of what can—and can’t—the law do well.

I. SYMPATHY FOR THE MARKET At the outset, I should briefly describe who I have in mind when I speak of evangelicals. By “evangelical,” I mean the theologically conservative Protestant Christians whose predecessors resisted the inroads of modernist theology during the early decades of the twentieth century. Unlike fundamentalists, evangelicals tended to remain within the existing churches, rather than hiving off and separating themselves from contemporary culture altogether.5 In the post–World War II era, leading evangelicals have included public figures such as Billy Graham and Carl Henry, and, more recently, James Dobson and Gary Bauer. Although evangelicalism includes a rich variety of voices, the evangelicals I have in mind have tended to be both theologically and politically conservative.6 There was a time, not so long ago, when evangelicals had withdrawn from public debate and were, as a result, largely anonymous.7 In recent decades, however, evangelicals have been vocal participants in the public square. And one of the positions evangelicals have consistently promoted is the virtue of free-market capitalism. If we take a step back, the link between evangelicalism and free markets is at least a little bit puzzling. Markets have a Darwinian quality, for instance, and their staunchest supporters have often been intellectuals who do not have much time for religious belief. In part for these kinds of reasons, the Catholic Church has long been critical of unbridled capitalism. Why are

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Protestant evangelicals so much more comfortable with free-market economics? The best explanation is historical and takes us back to the founding of the American republic. Modern evangelicalism emerged during what R. R. Palmer once called the “Age of the Democratic Revolution.”8 In the “revolutionary situations of the eighteenth and nineteenth centuries [including France and Northern Ireland as well as America],” historian Mark Noll has written, “an evangelical religion of biblical experimentalism provided meaning to more persons and motivation for more groups than did political utopianism or the defense of a threatened establishment.” Evangelicalism thrived because it “communicated enduring personal stability in the face of disorder, long-lasting eagerness for discipline, and a nearly inexhaustible hope that the dignity of self affirmed by the gospel could be communicated to the larger community.”9 An important effect of this emphasis on the self, and the “self’s own strategic choices,” was that it prompted many evangelicals to reconsider the relationship between church and state. Although some evangelical leaders continued to favor an established church, evangelicalism was increasingly disestablishmentarian in its orientation. This impulse was reinforced by the Framers’ decision to prohibit Congress from establishing a state church. “The result,” as recounted by Noll, “was that for about four decades after 1790 the Protestants who were most thoroughly evangelical and disestablishmentarian (Methodists, Baptists, and Disciples) flourished; those that were ambiguously so (Presbyterians) did fairly well; those that tried to retain establishmentarian prerogatives (Congregationalists and Episcopalians) advanced much more slowly.”10 The same trend that removed direct state support for churches had similarly profound implications on the economic side. Just as American evangelicals tended to look away from rather than toward the state in religious matters, they increasingly favored free markets, free trade, and the individual decisions of market actors over governmental intervention in the marketplace. American evangelicals’ commitment to market-based economics first began to take shape in this common emphasis on localism and individual choice. This is not to say that evangelicals had no qualms about the increasing influence of the markets in nineteenth-century America. Mindful of the frequent biblical admonitions about the dangers of wealth, evangelical pastors repeatedly warned their congregations about the corruption money can bring. After describing the “prejudice against capital” as “a shallow and hateful feeling,” for instance, Henry Boardman, a prominent nineteenth-century Presbyterian minister, conceded that “it is quite possible for individuals to aspire after wealth with an inordinate passion, and to pursue it by unwarrantable and pernicious methods.”11 The markets were generally good, on this view, but greed was not. Of particular con-

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cern to evangelicals, as to others, were the speculative frenzies that many Americans seemed to get caught up in throughout the nineteenth century. The “stamp of a stern and decisive reprobation must be put,” according to Boardman, “upon that PASSION FOR SUDDEN WEALTH which has long been one of our national characteristics.”12 At times, investors’ speculation looked indistinguishable from gambling, and evangelicals were willing to treat it as such. The most prominent illustration is so-called “difference contracts,” pursuant to which one party agreed to pay the other the difference between a stock’s or commodity’s value at the time the contract was signed and its value at the end of the contract period. Courts often refused to enforce these contracts, and many evangelicals seem to have been in accord. “The briefest possible glance at the thing,” Boardman railed, “will show that this is not commerce, but gambling—sheer, downright, unmitigated GAMBLING. . . . For, stripped of its technicalities, this selling ‘on time’ is simply a wager that the stock in question will be worth a certain sum on a specified day.”13 The concerns about speculation and greed did not dampen most evangelicals’ overall enthusiasm for free markets, however, and they tended to assume that these temptations were best counteracted by individual morality rather than governmental intervention.14 Moreover, evangelicals eventually came to accept many of the same practices—the most obvious example being futures, as we shall see—that their ministers initially condemned in such harsh terms. In my effort to telescope several hundred years into a few brief paragraphs, I am, of course, vastly oversimplifying evangelical views of the market. At various points, such as the outset of the tensions that fueled the Social Gospel movement in the late nineteenth century,15 evangelical perspectives were quite unsettled, and evangelicals have never spoken with a single, unified voice. In recent years, liberal evangelicals such as Ron Sider have subjected their fellow evangelicals’ free market predilections to sustained critique. But the affinity between evangelicalism and free markets is quite real, and it is not simply a Faustian bargain evangelicals have struck since the 1950s with libertarians within the Republican Party, as commentators sometimes suggest.16 As we have seen, the preference for markets rather than governmental intervention can be traced back to the early Republic. This orientation continues to characterize a great deal of evangelical thinking on economic issues today.

II. HOSTILITY TO GAMBLING As with free markets, evangelical views on gambling date back to the early years of the Republic. The historical pattern is quite different, however. In

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contrast to the flexible stance on market issues, evangelicals’ perspective on gambling has in some respects hardened over time. This stance can be summed up in a single word: hostility. To trace the historical antecedents of this hostility, it is useful to start with the first Puritan settlers. The Puritans outlawed gambling, and they viewed betting as “unequivocally wrong,” though they did not put gambling at the top of their list of crimes. “A relatively minor weakness in which many people indulged,” according to Bruce Daniels, “gambling became a scourge only in association with more serious offenses such as wasting time, losing large sums of money, or neglecting duty.”17 The one form of gambling that many Puritans were most hesitant to condemn was lotteries. To be sure, some of the most prominent Puritan divines denounced them unequivocally. Cotton Mather complained that lotteries usurp God’s authority, supplant players’ faith with a belief in mere chance, and foster idleness. These sentiments were echoed in a document entitled “Judgement of Ministers,” which Mather either wrote or inspired. “The [promoters of a] lottery only resolve to pillage the people of such a considerable sum,” the author complained, “and invite a number to assist them in their actions . . . ; and such is the corruption of mankind, that the mere hope of getting the riches of other men without doing the service of any thing for it, will engage men to run the hazard of being losers.”18 The four New England colonies passed anti-lottery laws in the eighteenth century, but the games continued, and, deploying the familiar logic that the end justifies the means, all of them eventually decided that lotteries were fine if their proceeds helped to fund streets, lighthouses, and other public projects.19 Absent an effective banking system, colonial governments turned to lotteries as one of the few ways to raise money; lotteries’ role as a substitute for banks complicated efforts to prohibit them throughout the eighteenth century. If we fast-forward to the early nineteenth century, an era of “unprecedented evangelical expansion” that Mark Noll denominates the “Evangelical Surge,”20 we find a loosely analogous pattern. Evangelical ministers loudly denounced gambling. In the 1830s, evangelicals stood at the forefront of a temperance movement that swept the nation. Though most concerned about drinking, temperance advocates also railed against other forms of immorality, including gambling. In his Seven Lectures to Young Men in 1843, Henry Ward Beecher, to take just one example, singled out gambling for particular censure. “Gambling,” he wrote, “is the taking or winning of property upon mere hazard. The husbandman renders produce for his gains; the mechanic renders the product of labor and skill for his gains; the gambler renders for his gain the sleights of useless skill, or more often, downright cheating. Betting is gambling; there is no honest equivalent to its gains.”21

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At the outset of the nineteenth century, the lottery had complicated this evangelical hostility to gambling, just as it had with their Puritan predecessors a century before.22 When a Methodist minister proposed in 1812 that the denomination forbid preachers or members from buying or selling lottery tickets, the General Assembly was sharply split and eventually tabled the issue.23 Many evangelicals were persuaded that lotteries were defensible so long as their proceeds were put to honorable use, and churches themselves were among the most frequent beneficiaries of lotteries during this era. As the nineteenth century wore on, however, evangelicals (and other Americans) began to condemn lotteries with an increasingly unified voice. The key development had less to do with the inherent sinfulness of lotteryplaying than with a wave of scandals that began turning public opinion against the lotteries. “Backed by concrete examples [of fraud],” the leading historian of lotteries has written, “the enemies of the lottery changed their tactics from debating the issue of biblical legality to strongly denouncing the vice accompanying the lottery’s use.”24 Over the next several decades, one state after another passed legislation prohibiting lotteries. By the eve of the Civil War, they were legal only in Missouri and Kentucky. Lotteries would make one last nineteenth-century comeback before disappearing for much of the twentieth century. Desperate for revenue, a number of states reintroduced them after the Civil War. But the revival was short-lived, and the last legal lottery, which was run pursuant to Louisiana statute by the Louisiana Lottery Company (labeled the “Serpent” by its many detractors) was continuously dogged by allegations of fraud. Particularly in the North, where opposition was galvanized by the Christian Union, an influential journal edited first by Henry Ward Beecher and then by Lyman Abbott, evangelicals actively campaigned to shut the lottery down.25 Congress finally ended the lottery, passing legislation that prohibited the mailing of lottery tickets in 1890 and foreclosing the use of interstate commerce for lottery materials in 1895. By the end of the nineteenth century, then, it is fair to say that evangelicals opposed gambling in all of its forms, and that this opposition was more pervasive and consistent than had ever previously been the case. In addition to concerns I have noted, one more factor seems to have contributed to this increasing hostility: the increasing presence of Roman Catholics. Waves of immigration brought thousands of European “papists” to America—particularly to the urban northeast—and evangelicals looked out with alarm at the immigrants’ far more relaxed attitude toward gambling. The Catholic Church has long tolerated small-stakes gambling, drawing a distinction between casual gambling and gambling borne of a thirst for sudden wealth.26 Although evangelicals’ hostility to gambling had deep historical roots, it cannot be entirely separated from the pervasive antiCatholicism that characterized nineteenth-century America. Evangelicals’

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overt enmity to Catholics has sometimes wavered since then, but their hostility to gambling has not.

III. ARE GAMBLING AND MARKETS DIFFERENT? If we compare nineteenth-century evangelical views on money and market issues to current ones, a clear pattern emerges. Since the nineteenth century, and particularly in recent years, evangelicals have continuously updated (or “renegotiated”) their support for free-market economics. Gambling, on the other hand, has been much less negotiable. To put evangelicals’ sympathy for American capitalism into perspective, think back to Henry Boardman’s condemnation of difference contracts as “sheer, downright, unmitigated gambling.” The most widespread “difference” transactions in the years after Boardman wrote were futures contracts. In theory, a futures contract was an agreement by one party to buy corn or another commodity at some date in the future. But in reality, most futures sellers simply paid the buyer the difference between the current market price and the market price as of the future date. Such instruments constitute, of course, precisely the kind of contract that Boardman and other evangelicals condemned. Some evangelicals (particularly in farm states) bitterly denounced futures (one critic called futures traders “devils in their gambling hells”) in the late nineteenth century and sought to have them prohibited.27 Yet evangelical hostility to these contracts dissipated after the nineteenth century. When Congress entered the picture in 1921 and passed legislation that funneled futures activity through the organized futures exchanges by imposing a steep tax on all other futures transactions, evangelicals were far less vocal. Much more recently, Wall Street bankers have developed a new generation of futures-like contracts: financial derivatives. Derivatives—which are contracts whose value is based on changes in an underlying currency, interest rate, stock, or other value—have created new opportunities for behavior that is best described as gambling. Evangelicals have seldom criticized these activities, and only rarely weighed in on daytrading, a phenomenon that looks even more like gambling. Evangelicals are not alone in this stance, of course. Americans as a whole have watched most of these developments with sympathy, indifference, or both. But evangelicals have been, if anything, even more reluctant than other groups to criticize American markets. When it comes to traditional gambling, the contrast between evangelicals and popular opinion is much starker. In the past several decades, gambling has lost much of its stigma. The transformation began in 1964, when New Hampshire established the first legal state lottery since the nineteenth century.28 By 1983, eighteen states ran lotteries, and the number climbed to

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thirty-four by the end of the decade. The decision by New Jersey lawmakers in 1977 to open Atlantic City to casinos contributed to the surge in legalized gambling, as did the wave of riverboat and tribal casino openings thereafter. During this time, gambling enterprises have managed to characterize themselves as ordinary leisure activities, and to shed some of the unsavory associations of the past. Many Americans now view a trip to Las Vegas as little different from a vacation at Disneyland. More than other Americans, evangelicals have dug in their heels, refusing to rethink their hostility to traditional gambling. While over 60 percent of Americans now view gambling as morally acceptable, only 27 percent of evangelicals share this view.29 Evangelicals have comprised much of the opposition to lottery initiatives in South Carolina, Alabama, and elsewhere; and they are the most visible opponents of the recent movement to permit racetracks to introduce slot machines. An evangelical group warned on the cover of a recent magazine, for instance, about the “false promises of funding schools and social programs with casino gambling,” and urged its members to circulate citizens’ petitions and lobby their lawmakers to oppose Pennsylvania legislation that would authorize racetrack slots.30 Evangelicals are so often seen as the principal obstacles to gambling initiatives that the director of the National Coalition Against Gambling felt compelled to emphasize at the outset of testimony in favor of restricting Internet gambling that “[w]e are not an organization of moralists”31—as if to say that this is one issue on which evangelicals are not the only ordinary citizens who see a need for restrictions. One way to appreciate how differently evangelicals have responded to gambling-like market behavior, on the one hand, and traditional gambling, on the other, is to noodle around a few of the most visible evangelical websites for a minute or two. The website for the Family Research Council, a national organization that was started by prominent evangelical (and candidate for the 2000 Republican presidential nomination) Gary Bauer, includes numerous updates summarizing the outcomes of traditional gambling cases, as well as several articles with titles like “Gambling Backlash: Time for a Moratorium on Casino and Lottery Expansion.”32 By contrast, an extensive search by my colleague Bill Draper did not uncover a single article addressing market issues such as “day-trading,” “speculation,” “futures,” or “commodities trading.” The website for Focus on the Family, whose president, James Dobson, is a Christian psychologist who served on the National Gambling Review Commission, is replete with stories as well as videos, research documents, and press releases on a wide variety of gambling issues, including lotteries and racetrack slots.33 Many of the stories urge members to lobby their lawmakers or take other political action. With market-based gambling, on the other hand, the only reference we found was a story that mentioned day-trading and described it as an “[Inter]net

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compulsion.” One finds a similar pattern with the Christian Coalition, the most prominent evangelical organization that makes political issues its principal focus.34 The Christian Coalition website is a bit more difficult to search, but it, too, provides links to several stories condemning the expansion of gambling while having little to say about market speculation. A skeptic might suspect that the staying power of these differential responses is best explained in political terms. Evangelicalism has in recent decades tended to exercise its political influence through the Republican Party, and Republicans are often seen as having a vested interest in markets and big business. From this perspective, unqualified support for the market is the price of admission to the circles of power. Perhaps there is something to this charge, although traditional gambling has itself become big business—just think of Donald Trump’s casino empire—and evangelicals have been much quicker to condemn these gambling businesses than the Republican Party as a whole. A less skeptical explanation suggests that there are good reasons for distinguishing between markets and gambling. Market transactions often make both parties better off, and the prices that result from the chaos of buying and selling ensure, as I noted earlier, that the most promising businesses are the ones that can most easily obtain funding. In the language of economists, market transactions are “positive-sum games.”35 Gambling activities, by contrast, are zero-sum activities: they tend to make one party better off at the expense of one (or more) other parties. If gamblers are motivated solely by the desire for gain, this distinction is quite compelling. Gambling seems to have much less to recommend it than markets do. But gamblers often are not motivated simply by money and greed. Many gamblers view a trip to Las Vegas as leisure or recreation, just as the casino ads would lead us to believe. Since we do not condemn time spent camping or at Disneyworld, it is not entirely obvious that gambling is necessarily pernicious. Moreover, even if we conclude that gambling is indeed pernicious, questions remain about the “positive-sum” nature of markets. To say that some or most market transactions benefit both parties does not mean that all market activities should be immune from scrutiny. If some aspect of the market encourages gambling—and day-trading certainly fits this profile—the abstract distinctions become much harder to sustain. I suspect that the skeptical and optimistic explanations are both part of but still not the whole story. Evangelicals have tended to distinguish between private morality, on the one hand, and the public marketplace, on the other. Mark Noll has written that, in the early nineteenth century, American evangelicals’ pietistic tendencies “drove them to a functional division of life into a sacred sphere, which received comprehensive and self-conscious attention, and a secular sphere, which did not.”36 By the late twentieth century, evangelicals’ perceptions of the marketplace were no

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doubt influenced by robust, theological defenses of free-market economics,37 but the historical distinction between private morality and the economic sphere continued (and continues) to exert influence to some extent. Evangelical campaigns against gambling can be seen, as with lobbying on abortion and homosexuality, as efforts to protect a traditional understanding of the proper contours of personal morality. The market, by contrast, belongs to a separate, outside, secular sphere.38 Other factors have no doubt also contributed to evangelicals’ greater passion for stamping out traditional gambling than its market-based analogue. Gambling is much easier to understand than the technical nuances of market trading, for instance. (Just try reading the transcript of a legislative hearing on Internet trading or derivatives regulation.) For our purposes, however, the most important points are that evangelicals have been much more concerned about gambling than market speculation; that the distinction cannot be justified entirely on normative grounds (by suggesting that markets are good and gambling is not); and that evangelicals’ hostility to gambling is consistent with a general pattern of seeking governmental intervention on issues of private morality.

IV. LEGISLATING MORALITY: CAN’T LIVE WITH OR WITHOUT IT Evangelicals’ enthusiasm for regulating moral issues and their lack of interest in (or lack of sympathy for) intervening in the marketplace do not always carry the day in either context. But sometimes they do. Unfortunately, there are important downsides both to regulating gambling and other moral issues, and to leaving markets to their own devices. With morality, the most obvious problem is that winning often ends up looking much like losing. Everyone’s favorite illustration of this phenomenon is, rightly, Prohibition.39 In the early twentieth century, growing numbers of Americans were persuaded that drinking was immoral. Buoyed by this shift in moral norms, American Protestants and other advocates of temperance persuaded Congress and the states to amend the Constitution to prohibit alcohol manufacture and consumption. When it passed in 1919, Prohibition looked like a remarkable victory for morality in American life. In little over a decade, however, the norms had shifted. Prohibition was flouted throughout the country—President Harding even offered liquor to his guests in the White House—and Congress acknowledged the futility of the ban by repealing it in 1932. Given how quickly America’s drinking norms shifted, it is hard to avoid the conclusion that Prohibition must have undermined support for the very norm it was supposed to enshrine. What happened? As William Stuntz has

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pointed out, the rapid deterioration of support for Prohibition was due, in no small part, to the perverse effects of discretionary enforcement. “Vice is everywhere, and police cannot be,” he notes. As a result, “[w]hom the police catch depends on where they look. And where the police look is something the police, not the criminals, determine.”40 In the 1920s, where police tended to look was in lower-class, urban neighborhoods. This focus was not entirely irrational. Alcoholism often went hand-in-hand with the miseries of urban life, and it was easier for police to target urban taverns and the manufacturers of beer (the drink of choice for the poor) than to root out the more upscale distribution of wine and liquor. But the effect was to send the message that drinking would be prosecuted in some places—such as working-class Italian neighborhoods—but tolerated in others. “The obvious response” to this “we vs. they” pattern of enforcement, Stuntz notes, “was to reject the law’s message, and its messenger.”41 Prohibition is the most vivid object lesson of the danger of trying to use the law to stamp out any form of immorality, or “vice.” Although the pervasive early- and mid-twentieth-century bans on gambling did not unleash as dramatic a backlash, the regulation of gambling follows a very similar storyline. Police enforcement has usually focused much more on numbers rackets (that is, small-scale illegal lotteries) and other street-level gambling than upscale games such as bookmaking.42 As with Prohibition, this discriminatory enforcement has undermined support for the very norm that the laws were designed to promote. Bans on gambling have done at least as much to crowd out antigambling morality as they have to supplement and reinforce it. The point, then, is that intrusive legal intervention has often backfired; more law does not necessarily lead to more morality. When can we expect to see these perverse effects? After all, the “law is a teacher,” as a law school cliché (and an influential recent strand of the scholarly literature) has it.43 No one opposes the laws that criminalize murder and theft, and even on more debatable issues, the law often seems to strengthen existing norms and even create new ones. Antismoking ordinances can be seen as an illustration of laws leading the way to a new norm. Although it is impossible to predict with certainty when the intended lessons of a law will go unheeded, there are several obvious warning signs. The first is that laws or legal decisions bearing on highly contested issues may sow the seeds for a backlash when they encode positions advocated by a tenuous majority that may crumble when the political landscape shifts. To give just a single recent illustration, when Roe v. Wade created a constitutional right to abortion and overturned numerous state laws in the process, it energized a pro-life movement that had been weak and diffuse until then. Second, laws that expand too far beyond the core of the behavior they are intended to prohibit may also invite unintended consequences, particularly if the law is too broad to be systematically enforced. There are good reasons to punish fraud, for

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instance, but a federal criminal code that includes over three hundred different fraud provisions—as the U.S. code does—is more likely to inspire prosecutorial mischief than to reduce immorality. Gambling does not fit neatly into either of these categories, but it has aspects of both, since gambling bans have a political quality (evangelicals support them unreservedly, while Catholics and other traditions often do not) and they are not limited to the behaviors (such as compulsive gambling) that inspire the bans. If evangelicals have expected too much from the law as a weapon in battles against immorality, perhaps they have expected too little from legal intervention in an unruly marketplace. Lawmakers cannot legislate morality in the business world any more than they can guarantee private morality—a lesson underlined by America’s recent corporate scandals (a theme I shall return to below). Still, admitting that law has its limits does not mean that it has no role to play in a world of free markets. That the markets evangelicals have so long extolled are themselves built upon an edifice of legal regulation is no less true for being a truism. Without vigorous enforcement by courts of property rights and contracts, “free” markets never get off the ground. Similarly, the liquidity and transparency that have made American markets the envy of the world are due in no small part to extensive disclosure requirements and antifraud laws, many of which were enacted in the 1930s during the last great corporate governance crisis. These same laws are also designed to put at least a few brakes on gambling-like market behavior. The most pervasive of these are limits on investors’ access to credit. In order to curb investors’ ability to speculate with money that isn’t really theirs, federal regulations prohibit brokers from lending more than 50 percent of the purchase price of the stock or other securities that an investor wishes to buy.44 In the past two decades—especially during the 1990s’ stock market bubble—the much-touted New Economy brought new opportunities for market-based gambling—much of which flies under (or outside) the radar of existing regulation. On Wall Street, investment bankers dreamed up a dizzying array of financial derivatives that could be used to hedge against risk but also invited traders to place massive bets on the movement of prices. The rise of the Internet gave us online stock trading and led to the 1990s’ day-trading phenomenon, which gained particular notoriety when an Atlanta speculator shot himself after taking on insurmountable stock-trading debts. In contrast to our active support for gambling bans, evangelicals have had surprisingly little to say about market-based gambling. Evangelical leaders sometimes admonish their listeners not to gamble in their market transactions, but few cry out for legal intervention to address the devastating effects of market-based gambling. Might there be a more consistent response, some role the law can play to curb the excesses of the market without also attempting to legislate business morality?

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V. TOWARD A MORE CONSISTENT PERSPECTIVE ON REGULATION? Americans seem to transform every issue into a legal question. It was hardly an accident that the nation’s two biggest recent political crises proved to be a playground for lawyers. Much of the debate during the Clinton impeachment saga turned on the legal definition of “perjury” (it all started, recall, with the question of what “is is”), and the Bush v. Gore election controversy featured weeks of mud-slinging that revolved to a remarkable extent around the nuances of state and federal election law. The unspoken assumption seems to be that the solutions to social problems should be found in the law. Evangelicals often seem to fall into the same trap—particularly when it comes to traditional moral issues like gambling. What might a more limited approach to legal intervention—one that depended less on heavy-handed legal oversight and left more room for the operation of moral norms—look like? One solution, of course, would simply be to legalize all gambling. But, given the social costs of gambling, it is hard to imagine that this would improve even on the rather quixotic mix of criminal prohibitions and state regulated (and with lotteries, sponsored) gambling we have now.45 An alternative approach might adopt a regulatory strategy I have referred to elsewhere as “channeling.” The goal is to permit legalized gambling, but to limit, among other things, efforts to stimulate demand for gambling (the most egregious example of which is state lottery advertisements).46 Consider the recent campaign by racetracks (inspired in no small part by the riverboat gambling wave of the 1990s) to persuade their legislators to let them install slot machines at the racetracks. Evangelical groups have responded to this development with great alarm, but racetrack slots may not be as great a scourge as evangelicals fear. To be sure, the racetrack slots campaign is a crass effort by racetrack owners to prop up an otherwise declining industry. And the politicians who support them are usually interested in little more than the prospect of new revenue that does not require a general tax increase. But racetracks are a perfectly logical venue for slots. There are relatively few racetracks in any given state, and they already involve betting. Moreover, it is much easier to prevent minors from gambling, and to otherwise control access, in this setting than it would be if other businesses were permitted to provide slot machines. To use the language of economists, racetracks are a natural “focal point” for gambling, a place where it can be both permitted and effectively cabined. Tribal casinos, on the other hand, are a less natural focal point, which suggests the deep hostility to them in many quarters may be more justified. Another illustration is the Internet gambling craze. Existing federal criminal law already prohibits Internet gambling operations from providing ac-

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cess to American gamblers, but these restrictions can be evaded by setting up the gaming operations offshore. The problem, even if Congress were to adopt more sweeping prohibitions, is that Internet gambling cannot be stamped out altogether. One off-shore gambling site brags, slightly but not entirely inaccurately, that the “Internet is a global communications technology not bound by the laws or control of any one government. Placing bets cannot be illegal because, despite their origination, bets will technically be placed on the computer at our off-shore land-based casino site.”47 Once again, a channeling strategy might prove more effective. Rather than attempting a complete ban, Congress could legalize Internet gambling, adopt strict licensing standards, and provide for enforcement only of obligations incurred at licensed gambling cites. Since gamblers have no way of determining whether Internet gambling sites are offering honest games, they would, one hopes, gravitate toward licensed Internet gambling operations. Regulators could then focus on overseeing the licensed sites, rather than attempting to police every possible Internet gambling site in the world. This is not to say that evangelicals should condone or encourage gambling, of course. In my own view, the traditional theological arguments against gambling, though debatable, make a compelling case for individual Christians to eschew gambling. Moreover, contemporary gambling has deeply regressive tendencies. The poor and elderly, for instance, spend a far greater percentage of their income on lottery tickets than those with more wealth.48 I am not defending gambling so much as suggesting that evangelicals would do well to rethink their views on how it can best be regulated. If we shift from gambling to economic issues, the storyline is quite different, as we have seen, but it leads to a very similar conclusion. When Enron and WorldCom collapsed, there was relatively little outcry in the evangelical community for substantial reform.49 In some respects, the muted response was defensible. Efforts to define corporate morality through regulation will often backfire, much as gambling prohibitions frequently have. The corporate responsibility reforms added a gaggle of new criminal securities fraud provisions to the criminal code, most of them inspired by the misdeeds of Enron’s executives. It is possible that the new criminal provisions will discourage future wrongdoing, but more likely that corporate executives will simply figure out ways to navigate around the new laws.50 Yet the corporate scandals also spotlighted recent market activities that look a lot like gambling and that should be cause for concern, but have not been fully addressed. Many of the energy contracts that changed hands on Enron’s energy-trading floor, for instance, were derivatives— that is, contracts whose value was based on (and thus “derived from”) changes in the price of something else: energy, in this case. Derivatives can be used to protect against risks, but they also can be used to make speculative bets. Although the Securities and Exchange Commission has

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strengthened companies’ disclosure obligations with respect to derivatives, regulators still have not developed a coherent regulatory framework for reining in abuses. Regulation is not a panacea for market-based gambling, of course, any more than it is with more traditional gambling activities. Regulation that is designed to curb gambling-like market behavior runs the risks both of inspiring ever more sophisticate methods of evasion, and of chilling the legitimate risk taking on which the American markets depend. But this suggests only that we should not expect too much from regulation of gamblinglike market behavior, not that regulation is unnecessary. With both traditional gambling—where evangelicals have been quite anxious to invoke the long arm of the criminal law—and with marketbased gambling—where evangelicals have said much less—the overall theme is the same: a little law and a lot of morality is good theology, and it might also provide a more effective strategy for evangelical influence.

NOTES I owe special thanks to Bill Draper for his comments, research, and other help. He has in many respects been like a co-author on this chapter, alerting me to relevant developments and shaping various aspects of the analysis. Thanks also to Jim Block, Charles Cohen, Sherry Colb, Joe DiStefano, Lenn Goodman, Howard Lesnick, David Novak, and Nicholas Wolterstorff, among others, for helpful comments, and to the University of Pennsylvania Law School for generous summer funding. 1. As my use of the first person plural in certain references to evangelicals indicates, this essay advances an evangelical perspective, though certainly not the perspective. (Despite a widespread tendency to cast evangelicals as a monolith, we hold no single point of view; indeed, I suspect this will be confirmed by the responses of evangelicals who read this chapter). 2. ABC News, “Primetime Live,” Transcript #373 (Oct. 27, 1994; 10:00 P.M. ET) (story about Robertson as “man of God and man of money”). The transcript may be accessed on Lexis under the heading “ABC News Transcripts.” 3. Tim Stafford, “Good Morning Evangelicals! Meet Ted Haggard, The NAE’s Optimistic Champion of Ecumenical Evangelism and Free-Market Faith,” Christianity Today (Nov. 2005): 40, 44. 4. “Gambling” is often defined as an activity that involves the payment of consideration for the chance of a reward; the three requirements are thus consideration, chance, and reward. See, e.g., Ronald J. Rychlak, “Lotteries, Revenues and Social Costs: A Historical Examination of State-Sponsored Gambling,” Boston College Law Review 34 (1992): 11, 14. In contrast to gambling, which often involves no element of skill, speculation usually contains an element of skill. One frequently cited discussion of the distinction defines speculation as “carrying out an act when one

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backs one’s own opinion against the established one or against the markets.” Reuven Brenner and Gabrielle A. Brenner, Gambling and Speculation: A Theory, A History, and a Future of Some Human Decisions (Cambridge, Mass.: Cambridge University Press, 1990), 91. There are problems with this definition (in a speculative bubble, for instance, speculators may be betting with rather than against established opinion), and one can quibble with the suggestion that skill is absent in gambling but present in speculation. For our purposes, however, these rough distinctions will suffice; and I will often use “gambling” in a very general sense, to include both gambling and speculation. 5. The distinctions between evangelicalism and fundamentalism are carefully explored in the work of historian George Marsden. George M. Marsden, Fundamentalism and American Culture: The Shaping of Twentieth Century Evangelicalism, 1870– 1925 (Oxford: Oxford University Press, 1980); George M. Marsden, Understanding Fundamentalism and Evangelicalism (Grand Rapids, Mich.: William B. Eerdman’s Publishing Company, 1991). 6. Evangelicals’ views on capitalism and free markets are a good illustration of this richness. Most evangelicals defend free markets, and I will be focusing on the defenders throughout this chapter. But more liberal evangelicals have long criticized the perceived shortcomings of capitalism. For a good overview of the evangelical debates on capitalism, see Craig M. Gay, With Liberty and Justice for Whom? The Recent Evangelical Debate Over Capitalism (Grand Rapids, Mich.: William B. Eerdmans, 1991). 7. Like fundamentalists, evangelicals largely withdrew from public debate in the early twentieth century in response to the increasing influence of modernity on American life. After World War II, Billy Graham and other young evangelicals argued that evangelicalism should reenter the mainstream. Events such as the founding of Fuller Theological Seminary in California in 1947 marked the beginning of evangelicals’ reengagement with American culture. Marsden, Understanding Fundamentalism and Evangelism, 72. 8. R[obert] R[oswell] Palmer, The Age of Democratic Revolution: A Political History of Europe and America, 1760–1800, 2 vols. (Princeton, N.J.: Princeton University Press, 1959–1964). 9. Mark A. Noll, “Protestant Reasoning About Money and the Economy, 1790– 1860: A Preliminary Probe,” in God and Mammon: Protestants, Money, and the Market, ed. Mark A. Noll (Oxford: Oxford University Press, 2002), 265, 266, 267. 10. Noll, “Protestant Reasoning About Money and the Economy,” 269. 11. Henry A. Boardman, The Bible in the Counting House (Philadelphia: Lippincott, Grambo & Co., 1853), 103–104. 12. Boardman, The Bible in the Counting House, 104. 13. Boardman, The Bible in the Counting House, 162. 14. This disinclination to look for governmental solutions did not extend to all areas of life, as we shall see when we turn to gambling below. In addition to gambling, evangelicals also were at the forefront of campaigns to add explicit references to God to the Constitution, and to prohibit mail deliveries on Sunday. These campaigns are analyzed in detail in Gaines M. Foster, Moral Reconstruction: Christian Lobbyists and Federal Legislation of Morality, 1865–1920 (Chapel Hill: University of North Carolina Press, 2002).

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15. For a useful history of the Social Gospel movement, which, unlike evangelicalism, adopted an accommodating stance toward theological modernism, see Gary Dorrien, Soul in Society: The Making and Renewal of Social Christianity (Minneapolis: Fortress Press, 1995). 16. See, for example, Fred Block, “The Right’s Moral Trouble,” Nation (Sept. 30, 2002): 20. The thesis is not entirely misguided. Libertarians and evangelicals have indeed tended to form an uneasy political alliance. But evangelical sympathy for markets has much deeper origins. 17. Bruce C. Daniels, Puritans at Play: Leisure and Recreation in Colonial New England (New York: St. Martin’s Press, 1995), 176. 18. John Samuel Ezell, Fortune’s Merry Wheel: The Lottery in America (Cambridge, Mass.: Harvard University Press, 1960), 18. 19. Daniels, Puritans at Play, 182. 20. Mark A. Noll, America’s God: From Jonathan Edwards to Abraham Lincoln (New York: Oxford University Press, 2002), 167. Chapter 7 is entitled “The Evangelical Surge.” 21. Henry Ward Beecher, Seven Lectures to Young Men on Various Important Subjects (Cincinnati: William H. Moore & Co., 1844), 104. 22. For a discussion of some of the differences between evangelicals and the Puritans who preceded them, see Mark A. Noll, American Evangelical Christianity: An Introduction (Oxford: Blackwell Publishers, 2001). Noll points out that, although the two groups overlapped in many respects, Puritans tended to be more comfortable with state involvement in religion. Noll, American Evangelical Christianity, 13. 23. Ezell, Fortune’s Merry Wheel, 182. 24. Ezell, Fortune’s Merry Wheel, 205. 25. Ezell, Fortune’s Merry Wheel, 259–60. 26. See, e.g., Brenner and Brenner, Gambling and Speculation, 83 (contrasting Catholic and Protestant views, and quoting magazine editor and Catholic priest Francis Talbot’s statement that, “‘played under the proper auspices, with petty stakes, the worst harm that bingo causes is a sore throat’”). As with the Catholic Church, Judaism has traditionally permitted small-stakes gambling. See, e.g., “Gambling,” in VII Encyclopaedia Judaica (New York: Macmillian, 1971) 300, 301 (“a sharp contrast was drawn . . . between the usual forms of gambling and cases where the primary motive was not personal gain”). 27. For a fascinating overview, see Ann Fabian, Card Sharps, Dream Books, and Bucket Shops: Gambling in Nineteenth-Century America (New York: Routledge, 1999 [orig. Ithaca: Cornell University Press, 1990]), 153–202. 28. For a good history of the recent developments described in this paragraph, see Rychlak, “Lotteries, Revenues and Social Costs,” 11. 29. See, for example, www.barna.org/FlexPage.aspx?Page’BarnaUpdate&BarnaU pdateID’152 (November, 2003 polling data finding that 61 percent of all Americans, but only 27 percent of evangelicals, approve of gambling). 30. Clem Boyd, “Slots for Tots Would Gamble Away Our Future!,” Pennsylvania Families and Schools (Spring 2002), 4. 31. Statement of Bernard P. Horn, Director of Political Affairs, National Coalition Against Gambling Expansion, “Internet Gambling Prohibition Act of 1997,”

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Hearings before the Subcommittee on Crime of the Committee on the Judiciary, United States House of Representatives, One Hundred Fifth Congress, second session, on H.R. 2380, February 4 and June 24, 1998, at 48. 32. The Family Research Council website is www.frc.org. The original search described in this paragraph was conducted in August 2002. 33. The Focus on the Family website is www.family.org. 34. Christian Coalition: www.cc.org. 35. Evangelical economists have often emphasized the positive-sum quality of markets in defending capitalism against its religious critics. See, e.g., Gary Nash, Poverty and Wealth: The Christian Debate Over Capitalism (Westchester, Ill.: Crossway Books, 1986), 71–72, quoted in Gay, With Liberty and Justice, 70 (“[M]arket exchanges illustrate what is called a positive-sum game. A positive-sum game is one in which both parties may win.”). 36. Noll, “Protestant Reasoning About Money and the Economy,” 270. American evangelicals, according to Noll, “did not feel compelled to construct grand schemes of economic life under God.” He contrasts British evangelicals, who linked theology and political economy much earlier than their American counterparts did, 270n15. 37. The classic in this genre is Michael Novak, The Spirit of Democratic Capitalism (New York: Simon & Schuster, 1982). 38. Evangelicals’ efforts to enlist the government to police the private sphere can perhaps be explained in terms of the Dutch theologian and politician Abraham Kuyper’s influential theory of “sphere sovereignity” [for more on which, see Nicholas Wolterstorff’s chapter in this volume]. Although Kuyper believed that the government generally should not interfere in other spheres of life (such as the domestic sphere, the university, or the community), he suggested that the state had the right and duty to intervene to “compel mutual regard for the boundary lines of each” sphere in the event different spheres clashed. Abraham Kuyper, Lectures on Calvinism (Grand Rapids, Mich.: Wm. B. Eerdmans Publishing Company, 2000 [orig. 1898]), 97. Evangelical activism on moral issues can be seen as an effort to prompt the government to protect the domestic sphere, though I suspect that Kuyper would not have approved some of the campaigns spearheaded by evangelicals, such as efforts to police private sexual behavior. 39. For a discussion of the push for Prohibition, see Richard F. Hamm, Shaping the Eighteenth Amendment: Temperance Reform, Legal Culture, and the Polity, 1880– 1920 (Chapel Hill: University of North Carolina Press, 1995). 40. William J. Stuntz, “Self-Defeating Crimes,” Virginia Law Review, 86 (2000): 1871, 1875. 41. Stuntz, “Self-Defeating Crimes,” 1877. 42. Stuntz, “Self-Defeating Crimes,” 1878n18, citing Floyd J. Fowler, Jr., et al, Gambling Law Enforcement in Major American Cities (Washington, D.C.: Department of Justice, Law Enforcement Assistance Administration, National Institute of Law Enforcement and Criminal Justice, 1978), 36, 42–44, 60. 43. The notion of law as a “teacher” echoes a statement the Apostle Paul makes about the relationship between Old Testament law and Christ in Galatians 3:24. For a critique of the recent literature extolling the use of law to teach moral behavior, see David Skeel and William J. Stuntz, “Christianity and the (Modest) Rule of Law,”

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University of Pennsylvania Journal of Constitutional Law, 8 (2006), 809–39, which discusses the work of Richard McAdams and Dan Kahan. 44. Securities Exchange Act of 1934, 15 U.S.C. sec. 78(g). Theresa A. Gabaldon, “The Role of Law in Managing Market Moods: The Whole Story of Jason, Who Bought High,” George Washington Law Review, 69 (2000), 111, 125. 45. As evangelicals and others have argued, there is also a danger that making gambling more accessible, and thus lowering its costs, will magnify the social ills that accompany gambling. The extent of this effect is hotly debated in the empirical literature. Compare, for example, John W. Kindt, “Increased Crime and Legalizing Gambling Operations: The Impact on the Socio-Economics of Business and Government,” Criminal Law Bulletin, 43 (November/December 1994), 538–55, which argues that legalized gambling leads to increases in crime and other problems, with William J. Miller and Martin D. Schwartz, “Casino Gambling and Street Crime,” Annals of the American Academy of Political and Social Science Science, 124 (March 1998), 124–37, which contends that much of what passes for evidence on this subject is anecdotal, that no compelling evidence links increases in gambling and crime, and that explanations for the “dynamic relationship” between the two requires more facts. 46. David A. Skeel, Jr., “A Channeling Approach to Gambling (and Derivatives) Regulation” (unpublished manuscript, 2002). 47. Bruce P. Keller, “The Game’s the Same: Why Gambling in Cyberspace Violates Federal Law,” Yale Law Journal, 108 (1999): 1569, 1571n9, quoting World Wide Web Casino website. 48. Charles Clotfelter and his co-authors find, for instance, that spending on lottery tickets drops sharply for those whose income exceeds $50,000 per year. Charles T. Clotfelter et al, “State Lotteries at the Turn of the Century: Report to the National Gambling Impact Study Commission” (June 1, 1999) available at www.pubpol. duke.edu/people/faculty/clotfelter/. 49. The exception to this was liberal evangelicals like Jim Wallis, who enthusiastically support the corporate responsibility legislation put in place after the corporate scandals. Jim Wallis, God’s Politics: Why the Right Gets It Wrong and the Left Doesn’t Get It (San Francisco: Harper San Francisco, 2005), 263. 50. These problems with the Sarbanes Oxley Act, which was enacted in 2002, are explored in more detail in Skeel and Stuntz, “Christianity and the (Modest) Rule of Law.”

III EUROPEAN PERSPECTIVES

7 A Theological Case for the Liberal Democratic State Nicholas Wolterstorff

I In this essay I propose setting out a theological case for the liberal democratic state, with my intended audience being not just theologians but all who care about the future of such a state. Before I begin, I should say a word about the point of setting out such a case to such an audience. The religion of a good many people in the United States is pretty much a private matter; they think about politics, about economics, about recreation, pretty much the same way everybody else does. They never think of connecting their religion with the defensibility of the liberal democratic state. For others, however, their religion is or incorporates a comprehensive perspective—to borrow a phrase from John Rawls—on God, the good, human nature and destiny, and the world. If a high proportion of such people harbor the view that there is no theological case to be made for the liberal democratic state, that at best a pragmatic case can be made for it, then we must expect their loyalty to such a state to be weak, and we must expect that they will happily subvert it and replace it with something else should the occasion arise. That was stated in the form of a conditional. It is my clear impression that, as a matter of fact, there are today a good many religious people in the United States who do believe that there is no theological case to be made for the liberal democratic state. Or more precisely, no theological case that is acceptable to them; theology, let it not be forgotten, comes in as many different and contentious forms as philosophy. Worse yet, there are, so it appears to me, a good many people who think that there is a good theological case to be 183

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made out against the liberal democratic state. That puts our liberal democratic state in danger. The distinction between liberal theory and a liberal political structure will be of fundamental importance to my project in this chapter. There is no dearth of discussions of the sort: “Can Christians accept John Stuart Mill’s political theory?” “Can Christians accept John Dewey’s political ideas?” “Can Christians accept John Rawls’s political theory?” “Can Christians accept Richard Rorty’s political ideas?” Those who bother to write such articles usually answer “Yes” to their question. But my topic is not whether a theological case can be made for accepting one and another secular political theory; my topic is whether a theological case can be made for that sort of political structure which is a liberal democratic state. My own evaluation of the liberal democratic state has already been implicit in the foregoing remarks: I regard it as an achievement of great value, my reasons for that judgment being a blend of theological and nontheological reasons. I do not hold that it is the best political arrangement for all people at all times and in all places; indeed, the state itself is a relatively recent form of governmental structure and, for all we know, may be on the way out. I hold that liberal democracy is the best governmental structure for American society today, and for lots of other present-day societies as well.

II Once upon a time it would have seemed strange indeed to ask whether a theological case could be made for the liberal democratic state. Colonial America was chock-full of exactly such arguments. A few years ago, I published an article entitled “A Religious Argument for the Civil Right to Freedom of Religious Exercise, Drawn from American History,”1 in which I explored the right to the free exercise of religion embedded in the state constitutions adopted around the time of the American Revolution. What I found fascinating about these constitutions was that, unlike the first article in the U.S. Bill of Rights, they did not just guarantee the free exercise of religion but also offered a reason for the guarantee. With the exception of the New York constitution, the reason was always theological, and, in its essentials, was always the same. Let me quote two of the formulations. The Pennsylvania Constitution of 1776 affirms that “all men have a natural and unalienable right to worship Almighty God according to the dictates of their own consciences and understanding.” And the Maryland Constitution of 1776, speaking of “duty” rather than “right,” says that “it is the duty of every man to worship God in such manner as he thinks most acceptable to him.”2 When one reads around in these various constitutions and in the literature of the day, it becomes clear that the full thought is that everybody

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has a natural duty to worship Almighty God, along with the natural duty, and hence the natural right, to do so according to his or her own conscience and understanding. The reason for guaranteeing to the citizenry the civil right to worship God according to one’s conscience and understanding is that it assures social space to the exercise of one’s natural right. I mean this reference to theological arguments for religious liberty only as an illustration of the general point: theological arguments for the rights and liberties definitive of a liberal democratic state were all over the place in colonial America; those offered for the freedom of religious exercise were only a species of the genus. Things are different today. A certain narrative has spread abroad, especially among academics, according to which theology—or institutional religion—is unfriendly to the liberal state, and not just accidentally but “necessarily so.” The liberal democratic state emerged, so it is often said, when religion and theology were finally privatized, removed from the public sphere; the continuance of such states requires that religion and theology continue to be privatized. Though Richard Rorty is famous for his construction of idiosyncratic narratives, it is not an idiosyncratic narrative that he is alluding to when he says that “the happy, Jeffersonian compromise that the Enlightenment reached with the religious [ . . . ] consists in privatizing religion—keeping it out of” the public square, “making it seem bad taste to bring religion into discussions of public policy.”3 The narrative is patently false. The liberal democratic state did not emerge by fending off institutional religion and theological argument; it emerged, in good measure, from the cauldron of religious struggle and theological argumentation—from the struggle between people fighting for the rights and liberties of such a state for theological reasons, and people opposing the rights and liberties of such a state for theological reasons. The liberal democratic state emerged in good measure from the heart of Christendom. And so it is yet today. It was for explicitly theological reasons that Bishop Tutu and the Rev. Allan Boesak struggled against the Afrikaner regime; it was for explicitly theological reasons that the Rev. Martin Luther King, Jr., struggled for the expansion of civil rights in America. The common narrative is an ideological construct. Unless we scrap it, we can understand neither who we are today nor where we came from.

III Rather than offering a theological argument of my own for the liberal democratic state, I have decided to lay out the main contours of the argument developed by Abraham Kuyper, Dutch theologian, politician, and journalist, who lived from 1837 to 1920. I have chosen to present Kuyper’s

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argument rather than my own because my own would be an adaptation and amplification of Kuyper’s. If I were writing for a group of fellow Christians, trying to persuade them of the value of the liberal democratic state, I would present to them my adaptation of Kuyper’s line of thought, fleshing it out here and there, eliminating the outdated touches of Romanticism, deleting the annoying intrusions of Calvinist chauvinism, and so forth. But my purpose on this occasion is not so much to persuade as to show what a theological argument for the liberal democratic state might look like; and for that purpose, I think it is best—or at least appropriate—to have before us the original line of thought of which my own would be an adaptation. Admittedly I also find myself sympathetic to some of the theological lines of thought articulated in American colonial days; accordingly, if my only motive were to set forth a theological case for the liberal democratic state with which I feel some sympathy, I could have presented those lines of thought. So, in the interests of full disclosure, I should admit that I have additional reasons for picking Kuyper: his case is much more comprehensive than theirs; and in the course of making his case for the liberal democratic state, he articulates what would have been in the eighteenth century, and is yet today, a fresh way of thinking of such a state. It is definitely not an individualist way of thinking that he develops; but it is also not communitarian, as that has come to be understood. It is distinct from all our familiar options. Some readers will have little if any sympathy for Kuyper’s theology. How are they to deal with what follows? Should they treat it purely as a piece of information? I think not. I suggest that they should respond in the same way that any of us would respond to the articulation of a secular philosophical case for liberal democracy. Respond to Kuyper as you would to Mill. If I were to articulate the sort of “do your own thing,” Southern California–style of life that Mill advocates in the course of making his case for liberal democracy in On Liberty, many readers would find themselves disagreeing at a fundamental level. Nonetheless, most would not treat it simply as historical information; after making allowances, they would appropriate whatever seemed to them appropriatable—just as those who were in the audience for King’s “I Have a Dream” speech but disagreed with his theology made allowances and appropriated whatever they each found appropriatable. At the heart of Kuyper’s understanding of the state is the concept of authority, or sovereignty—”souvereiniteit” in Dutch. His fundamental questions are these: By what authority does the state promulgate and implement laws, and punish those who disobey? What is the ultimate purpose of such activity on the part of the state? And what ought to be the limits on such activity? Though those are the fundamental questions that Kuyper thinks must be addressed in an account of the state, be it theological or otherwise, he does

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not immediately plunge into answering them. He leads up to his answers; and he does that in a most interesting way, namely, by developing a theological account of civil society and familial life. Rather than following the Lockean liberal tradition by starting with the sovereign individual and asking how the state should be related to him or her, Kuyper starts with civil society and familial life and asks how the state should be related to those. The charge commonly made against the liberal democratic state, that it is tenable only on individualistic premises, will be seen as unsustainable once we have Kuyper’s thought before us. The story of humankind on earth, says Kuyper, when regarded in its totality, is not the story of the same old things happening over and over again but the story of progress; and the story of progress is the story of the progressive actualization by human beings of “the powers, which, by virtue of the ordinances of creation, are innate in nature itself.” Theoretical learning, for example, is “the application to the cosmos of the powers of investigation and thought created within us.” Art is “the natural productivity of the potencies of our imagination.” And so forth.4 Over and over Kuyper employs the metaphor of an organism to make his point: the “expressions of life” in theoretical learning, art, business, and so forth, “all together [ . . . ] form the life of creation, in accord with the ordinances of creation, and therefore are organically developed” (C 118). “The development is spontaneous, just as that of the stem and the branches of a plant” (C 117). An important aspect of Kuyper’s understanding of this organic development is that, as it progresses, distinct social spheres emerge (in Dutch, “kringen”). Kuyper does not articulate theoretically this concept of a sphere; he does not, for example, develop criteria for the identity and diversity of spheres. For this, he has often been criticized. But Kuyper’s concept of a sphere was not a technical concept; had it been that, he would indeed have owed us a careful explanation. It was a concept borrowed from common currency. You and I, more than a century later, still employ the concept. Consider, for example, the following passage in Kuyper: “Just as we speak of a ‘moral world,’ ‘a scientific world,’ ‘a business world,’ ‘the world of art,’ so we can more properly speak of a ‘sphere’ of morality, of the family, of social life, each with its own domain.”5 You and I still speak familiarly of “the art world,” “the business world,” “the world of politics”; in so doing we are employing the same concept of a sphere, a kring, that Kuyper employed. Let it be added that this was also the concept employed by Max Weber when he developed his theory of differentiation as the hallmark of a modernized society: a modernized society is one in which human activity gets differentiated into distinct social spheres. Weber goes somewhat beyond Kuyper in claiming that what differentiates one sphere from another is that a different ultimate value is pursued: the governing value in the art world is different from the governing value in the business world. But if one reads

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just a bit between the lines, I think it is clear that Kuyper assumes this without ever quite saying it. And now for the most important point that Kuyper makes about this organic development of human life on earth: authority (dominion, sovereignty—he uses the words interchangeably) naturally and spontaneously emerges in the course of this development. This “organic social authority,” as he calls it (C 121), comes in two significantly different forms. One form is that of “personal sovereignty,” or “the sovereignty of genius.” Kuyper’s thought is that, in any field (sphere, sector, “world”) certain individuals come to have a dominating formative impact on how that field develops. Take, for example, the “dominion of men like Aristotle and Plato, Lombard and Thomas, Luther and Calvin, Kant and Darwin.” The “dominion” of each of these extends “over a field of ages. Genius is a sovereign power; it forms schools; it lays hold on the spirits of men, with irresistible might; and it exercises an immeasurable influence on the whole condition of human life. This sovereignty of genius is a gift of God.” (C 122). Though that species of organic social authority which is the sovereignty of genius is important for Kuyper, its importance for his purposes, and for ours, is overshadowed by that of the other kind of sovereignty that spontaneously emerges from the organic development of life. Social institutions possessing authority structures emerge—meaning by “authority,” in this case, the right to issue directives to others that place those others under the (prima facie) obligation to obey. Life could not flourish, and many if not most modes of life could not even exist, without the emergence of institutional bases for such life along with their authority structures. And when the life of humankind gets differentiated into distinct spheres, institutions specific to those spheres emerge, along with their authority structures. Theoretical learning could scarcely exist, and certainly could not flourish, without such institutional bases as universities, colleges, research institutes, and the like, each with its “head” or governing body. Kuyper places governmental authority within this grand picture of authority structures pervading our human social existence. Governmental authority is but one species of a vast genus. We will misunderstand both its nature and its proper scope if we do not place our thinking about it within that context. A word more must be said about the authority structures of our differentiated civil society. The authority of every authority structure has a certain scope; the structure has the authority, the right, to issue directives to certain people on certain matters—and not the authority to issue directives to other people, nor to issue directives on other matters. God alone has the authority to issue directives to all human beings on all matters. We can now combine the concept of a sphere with the concept of the scope of some authority structure, to form the concept for which Kuyper became famous,

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souvereiniteit in eigen kring—customarily translated as “sphere sovereignty,” but more literally translated as “sovereignty in its own sphere.” The scope of the authority of those authority structures that emerge in the civil society of the modern world is typically focused on life within some differentiated social sphere. In Kuyper’s words, “The University exercises scientific dominion; the Academy of fine arts is possessed of art-power; the guild exercised a technical dominion; the trades-union rules over labour;—and each of these spheres or corporations is conscious of the power of exclusive independent judgment and authoritative action, within its proper sphere of operation” (C 123). Of course, the fact that a certain authority structure has the right to issue directives for life within a certain sphere does not imply that it has the right to issue directives for the totality of life within that sphere; the president of my university, Yale, has no right to issue directives to the students and staff of, say, Princeton. Thus it is that Kuyper says that “the social life of cities and villages forms a sphere of existence, which arises from the very necessities of life, and which therefore must be autonomous” (C 123). These observations suggest the crucial questions: What grounds the right of the authority structures of civil society to issue directives to human beings? And what determines the rightness or wrongness of their directives? Start with the former. Kuyper is almost fierce in his insistence that no human person or institution intrinsically possesses the right to issue authoritative directives to a human being. The only being who intrinsically possesses authority over human beings is God.6 “Authority over men cannot arise from men,” says Kuyper. “When God says to me, ‘obey’, then I humbly bow my head, without compromising in the least my personal dignity, as a man. For in like proportion as you degrade yourself, by bowing low to a child of man, whose breath is in his nostrils; so, on the other hand, do you raise yourself, if you submit to the authority of the Lord of heaven and earth” (C 104). Kuyper regards this conclusion as following from what he sees as one of the convictions most characteristic of historic Calvinism, namely, that each and every human being stands in immediate relation to God without the mediation of church, priest, or anything else of the sort. Let me quote a passage which, though somewhat lengthy, is important for our purposes: If Calvinism places our entire human life immediately before God, then it follows that all men or women, rich or poor, weak or strong, dull or talented, as creatures of God, and as lost sinners, have no claim whatsoever to lord over one another, and that we stand as equals before God, and consequently equal as man to man. Hence we cannot recognize any distinction among men, save such as has been imposed by God Himself, in that He gave one authority over the other, or enriched one with more talents than the other, in order that the man of more talents should serve the man with less, and in him serve his God.

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Hence Calvinism condemns not merely all open slavery and systems of caste, but also all covert slavery of woman and of the poor; it is opposed to all hierarchy among men; it tolerates no aristocracy save such as is able, either in person or in family, by the grace of God, to exhibit superiority of character or talent, and to show that it does not claim this superiority for self-aggrandizement or ambitious pride, but for the sake of spending it in the service of God. So Calvinism was bound to find its utterance in the democratic interpretation of life; to proclaim the liberty of nations; and not to rest until both politically and socially every man, simply because he is man, should be recognized, respected and dealt with as a creature created after the Divine likeness (C 26–27).

If God alone possesses authority intrinsically over human beings, how then do we account for the fact that the institutions of civil society do in fact have authority structures? Kuyper’s answer, to no surprise, is that they have authority by virtue of God having delegated some of his authority to them. “[N]o one on earth can claim authority over his fellow-men,” he says, “unless it be laid upon him ‘by the grace of God’; and therefore, the ultimate duty of obedience, is imposed upon us not by man, but by God Himself” (C 106). And again, “God only—and never any creature—is possessed of sovereign rights, in the destiny of nations, because God alone created them, maintains them by His Almighty power, and rules them, by His ordinances [ . . . ]. [M]an never possesses power over his fellow-man, in any other way than by an authority which descends upon him from the majesty of God” (C 108). Let me interrupt my exposition for a moment to say that I think Kuyper is working with a false dilemma here. His argument goes like this: the authority over human beings that some person or institution possesses is possessed by him or it either intrinsically, or by delegation from some other person or institution that possesses that authority intrinsically. God possesses authority over human beings intrinsically, but no human person or institution possesses authority over human beings intrinsically. Thus such authority as human persons and institutions do possess over human beings has been delegated to them by God. What Kuyper overlooks in arguing thus is that by forming compacts (covenants, contracts, agreements) of certain sorts, we human beings have the power to create authority where there was none before. A group of us get together to set up a chess club. We draw up a mini-constitution with bylaws. We then elect some officers, as specified in the bylaws; and those officers now have authority over the membership to assess dues, specify times of meeting, and so forth. The social contract theory of state authority claims that state authority is a species of authority created by compact. Kuyper finds this theory exceedingly implausible, as do I;7 not all authority of human persons or institutions over human beings is the creature of compact. But some is.

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And when it is, it neither seems correct to say that the person or institution possesses his or its authority intrinsically, nor to say that he or it possesses it by delegation from some other person or institution that possesses it intrinsically. The officers of our little chess club neither possess authority over us the members intrinsically; nor do they possess it by virtue of our having delegated to them some authority that we possessed in advance. Do they possess it, then, by virtue of its having been delegated to them by God? I would say, to the contrary, that this is a case in which authority has been created by us human beings. Of course it is not created ex nihilo. Though the authority did not exist in advance, waiting to get transferred to the officers of the club by delegation, what was there in advance was the ability, on the part of each of the members, to take onto himself or herself the relevant obligations by forming a compact with the others; had that been missing, the authority could not have been created. Now Kuyper embraced a theory of obligation according to which every obligation to act in a certain way toward some human being is, at bottom, an obligation to God to obey God’s commands with respect to that human being. So if he had conceded my point, that we are capable of creating authority by compact, what he would have gone on to say is that all authority over a human being, by some human person or institution, is either delegated to that person or institution by God or grounded in our obligation to obey God’s commands; and then he would have noted that our obligation to obey God’s commands presupposes that God has the authority to place us under obligation by issuing those commands to us. Hence, one way or another, behind all the authority structures of civil society lies divine authority. It is “the special trait of Calvinism,” says Kuyper, “that it placed the believer before the face of God, not only in His church, but also in his personal, family, social, and political life. The majesty of God and the authority of God press upon the Calvinist in the whole of his human existence. He is a pilgrim, not in the sense that he is marching through a world with which he has no concern, but in the sense that at every step of the long way he must remember his responsibility to that God so full of majesty” (C 86–87). Let me elaborate a bit on the point just made about Kuyper’s way of thinking of obligation. Obligation is a special case of what Kuyper calls “the ordinances of God.” All “created life,” he says, necessarily bears in itself a law for its existence, instituted by God Himself. Some of these ordinances are what we customarily call “natural law,” a term, says Kuyper, that he is willing to accept on the proviso that “we understand thereby, not laws originating from Nature, but laws imposed upon Nature” (C 87). But also there are ordinances of God “in Logic, to regulate our thoughts; ordinances of God for our imagination, in the domain of aesthetics; and [ . . . ] ordinances of God for the whole of human life in the domain of morals” (C 87).

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What Kuyper happens not to mention here is that there are also ordinances of God for the political sphere. We are all, as human beings, called to follow these ordinances, “not by force, as though they were a yoke of which [one] would like to rid [oneself], but with the same readiness with which we follow a guide through the desert, recognizing that we are ignorant of the path, which the guide knows, and therefore acknowledging that there is no safety but in closely following in his footsteps” (C 88). How do we know these ordinances? Which is to say: how do we know what will promote the proper development and authentic flourishing of humankind? Kuyper’s answer was always two-fold. On the one hand, humankind is created with the capacity to discover God’s ordinances for our life together. Though sin has impaired this capacity, the doctrine of common grace—more about this shortly—implies that sin has only impaired the capacity, not destroyed it. On the other hand, the light of the Christian Gospel illuminates God’s ordinances—that is to say, illuminates what promotes our authentic flourishing. Let it be said emphatically that these ordinances were not for the first time issued in God’s revelation through Israel and Christ; they are illuminated thereby. The ordinances were there already, issued in creation. “Christ has swept away the dust with which man’s sinful limitations had covered up this world-order, and has made it glitter again in its original brilliancy. But the world-order itself remains just what it was from the beginning. It lays full claim, not only to the believer, but to every human being and to all human relationships” (C 89–90). Thus what Kuyper says concerning government is meant by him to apply to all forms of authority: “the government has to judge and to decide independently. Not as an appendix to the Church, nor as its pupil. The sphere of State stands itself under the majesty of the Lord. In that sphere therefore an independent responsibility is to be maintained. The sphere of the State is not profane. But both Church and State must, each in their own sphere, obey God and serve His honour. And to that end in either sphere God’s Word must rule, but in the sphere of the state only through the conscience of the persons invested with authority” (C 134–35).8

IV With this picture as context, of civil society and familial life laced through with authority structures, along with this theological account of the ground of their authority, let us turn to the state, beginning with the nature of governmental authority. Though Kuyper, as I have emphasized, wants us to see directive authority as pervading our social existence, with governmental authority one species of the genus, nonetheless he holds that state authority is distinct from all other authority structures in important ways. To high-

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light one aspect of what makes it distinct, Kuyper often calls its authority mechanical, as opposed to organic: “the sovereignty of God, in its descent upon men, separates itself into two spheres. On the one hand the mechanical sphere of State-authority, and on the other hand the organic sphere of the authority of the Social circles” (C 121). What does he mean by calling the authority of the state “mechanical”? Well, the actualization of humankind’s in-created potentials gives rise not only to institutional bases for theoretical learning, for economic activity, for artistic activity, and the like, along with their authority structures; it also gives rise to states, or more generally, to government, whether that takes the form of states or not. The “impulse to form states arises from man’s social nature,” says Kuyper, adding that this “was expressed already by Aristotle when he called man a ‘political animal’” (C 100). In this respect, the state is as much an organic development as are universities, art organizations, businesses, and so forth. However, in this fallen world of ours, the dominant task of the state has become to restrain sin; in that way the state is one of the primary manifestations of God’s common grace.9 Kuyper speculates that had there been no sin, political life “would have evolved itself, after a patriarchal fashion, from the life of the family” (C 101); there would have been no magistrates, no police, no army. In fact, however, every state is a “means of compelling order and of guaranteeing a safe course of life.” As such, it is “mechanical,” “always something unnatural,” “something against which the deeper aspirations of our nature rebel” (C 101). “God has instituted the magistrates by reason of sin”; they “rule mechanically, and do not harmonize with our nature”(C 102). Not only is their relation to human development “mechanical” in this way, rather than “organic”; they are themselves fallen. They are both meant to cope with our fallenness and are themselves fallen. They are constantly seeking to expand their authority beyond its proper scope in one direction, and allowing it to be unduly restricted or influenced in another; at the one extreme lies the totalitarian state, at the other, the minimal state. Hence there is always a duality in the Christian attitude toward the state. On the one hand, we “gratefully receive, from the hand of God, the institution of the State with its magistrates, as a means of preservation, now indeed indispensable”; on the other, “we must ever watch against the danger, which lurks for our personal liberty, in the power of the State” (C 102–103). So much for the nature of state authority and how it differs from that of the other social authority structures; now for how it ought to be related to those other social authority structures. The overarching point is that, in differentiated societies such as ours, the scope of the authority of a social authority structure ought to be limited to its own sphere. In particular, the authority structures of civil society and family life ought not to be divisions of

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state or church; all such attempts at state or church aggrandizement must be vigorously resisted. The authority structures within a given sphere of society are to be directly responsible to God for how they exercise their authority, not indirectly responsible through the mediation of church or state—nor, indeed, of any other authority structure outside their own sphere. “[T]he family, the business, science, art, and so forth are all social spheres, which do not owe their existence to the State, and which do not derive the law of their life from the superiority of the state, but obey a high authority within their own bosom; an authority which rules, by the grace of God, just as the sovereignty of the State does. [T]hese different developments of social life have nothing above themselves but God.” Kuyper adds, “As you feel at once, this is the deeply interesting question of our civil liberties” (C 116). A large component in Kuyper’s lifelong opposition to the French Revolution was that he saw in it the attempt by the state to get as much authority into its own hands as possible; he would have offered the same analysis of Stalinist communism. “The State may never become an octopus which stifles the whole of life” (C 124). This, so far, is negative. What is the positive role of the state? Strictly speaking, there is no sphere within society determining the scope of the state’s authority; in that way too it is unlike other authority structures. It is, as it were, “the sphere of spheres, which encircles the whole extent of human life.”10 So once again, what is its role? “Neither the life of science nor of art, nor of agriculture, nor of industry, nor of commerce, nor of navigation, nor of the family, nor of human relationship may be coerced to suit itself to the grace of government.” Government “must occupy its own place, on its own root, among all the other trees of the forest, and thus it has to honour and maintain every form of life which grows independently, in its own sacred autonomy” (C 124). What that amounts to, Kuyper suggests, is a “threefold right and duty” on the part of the state: “1. Whenever different spheres clash, to compel mutual regard for the boundary lines of each; 2. To defend individuals and the weak ones, in those spheres, against the abuse of power of the rest; and 3. To coerce all together to bear personal and financial burdens for the maintenance of the natural unity of the State” (C 124–25). So far, and no farther. “A people which abandons to State Supremacy the right of the family, or a University which abandons to it the rights of science, is just as guilty before God, as a nation which lays its hands upon the rights of the magistrates. And thus the struggle for liberty is not only declared permissible, but is made a duty for each individual in its own sphere” (C 127). Kuyper’s words have proved prescient: the best protection against state aggrandizement is a vital civil society and a vigorous defense of the rights implicit therein. “It depends on the life-spheres themselves whether they will flourish in freedom or groan under State coercion. With

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moral tensile strength they cannot be pushed in, they will not permit themselves to be cramped. But servility, once it’s become shackled, has lost even the right to complain.”11 Lastly, what is the overarching goal of the state in its interventions? Kuyper’s answer is justice and the common good. “The highest duty of the government remains therefore unchangeably that of justice, and in the second place it has to care for the people as an unity, partly at home, in order that its unity may grow ever deeper and may not be disturbed, and partly abroad, lest the national existence suffer harm” (C 120). The entire picture is compellingly summarized in the following lengthy though vivid passage from the lecture, “Sphere Sovereignty,” that Kuyper gave as the address at the opening of the Free University of Amsterdam in 1880: The cogwheels of all these spheres engage each other, and precisely through that interaction emerges the rich, multifaceted multiformity of human life. Hence also rises the danger that one sphere in life may encroach on its neighbor like a sticky wheel that shears off one cog after another until the whole operation is disrupted. Hence also the raison d’être for the special sphere of authority that emerged in the State. It must provide for sound mutual interaction among the various spheres, insofar as they are externally manifest, and keep them within just limits. Furthermore, since personal life can be suppressed by the group in which one lives, the state must protect the individual from the tyranny of his own circle. This Sovereign, as Scripture tersely puts it, “gives stability to the land by justice” [Prov. 29:4], for without justice it destroys itself and falls. Thus the sovereignty of the State, as the power that protects the individual and defines the mutual relationships among the visible spheres, rises high above them by its right to command and compel. But within these spheres that does not obtain. There another authority rules, an authority that descends directly from God apart from the State. This authority the State does not confer but acknowledges. Even in defining laws for the mutual relationships among the spheres, the State may not set its own will as the standard but is bound by the choice of a Higher will, as expressed in the nature and purpose of these spheres. The State must see that the wheels operate as intended. Not to suppress life nor to shackle freedom but to make possible the free movement of life in and for every sphere.12

V There is one part of Kuyper’s theology that remains to be presented, namely, his doctrine of common grace, a doctrine that he put to many uses, but especially to argue against those of his fellow Christians who wanted to ignore civil society and the state so far as possible and concern themselves solely with the church and family life. Kuyper was opposed equally to theocracy

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and sectarianism. Against the theocratic impulse, he argued that theocracy confused the sphere of institutional religion with the sphere of the state; against the sectarian impulse, he argued that it amounted to a denial of common grace. A persistent theme in Kuyper’s writing is opposition to all versions of Christianity that give priority to the salvation of individual souls. The error of such people lies, he says, in that they “focus on their own salvation instead of on the glory of God.”13 What Kuyper had in mind with this reference to the glory of God is eloquently conveyed in the following passage, which takes up in a new context some of the themes we have already explored. The social side of man’s creation in God’s image has nothing to do with salvation nor in any way with each person’s state before God. This social element tells us only that in creating human beings in his likeness God deposited an infinite number of nuclei for high human development in our nature and that these nuclei cannot develop except through the social bond between people. From this viewpoint the highly ramified development of humanity acquires a significance of its own, an independent goal, a reason for being aside from the issue of salvation. If it has pleased God to mirror the richness of his image in the social multiplicity and fullness of our human race, and if he himself has deposited the nuclei of that development in human nature, then the brilliance of his image has to appear. Then that richness may not remain concealed, those nuclei may not dry up and wither, and humanity will have to remain on earth for as long as it takes to unfold as fully and richly as necessary those nuclei of human potential. Then will have occurred that full development of humanity in which all the glory of God’s image can mirror itself.14

Kuyper does not dispute that the “salvation of souls” also bespeaks God’s glory; but the truly grand work of God with respect to human beings, that for the sake of which God created humankind and guides its history, is the full development of the potentials “deposited” in our species. “A finished world will glorify God as Builder and Supreme Craftsman. What Paradise was in bud will then be in full bloom.”15 And what of sin? Sin disturbs and disrupts this grand march of humankind toward fulfillment. But God responds to sin with a grace, a favor, a generosity, that can be thought of as re-creative. This re-creative grace takes two forms. It takes the form of “a temporal restraining grace, which holds back and blocks the effect of sin” so that God’s goal at creation of humankind’s full flowering is not frustrated; and it takes the form of “a saving grace, which in the end abolishes sin and completely undoes its consequences.”16 The latter is particular in scope; only some are destined for God’s New Creation. This is Kuyper’s orthodox Calvinism coming out. The latter is universal in scope; that mode of divine generosity whereby God restrains the effects of sin is dispensed to all humankind. This is common

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grace. “To every rational creature, grace is the air he breathes.”17 Common grace is to be seen at work “when human power over nature increases, when invention upon invention enriches life, when international communication is improved, the arts flourish, the sciences increase our understanding, the conveniences and joys of life multiply, all expressions of life become more vital and radiant, forms become more refined, and the general image of life becomes more winsome.”18 Against all those forms of Christianity that concentrate on the salvation of souls and their own “dear, devout fellowships,”19 Kuyper argues then that they are tacitly or explicitly denying the existence of God’s common grace. Since there is “grace operating outside the church,” since “there is grace even where it does not lead to eternal salvation,” we are “duty-bound to honor [this] operation of divine grace in human civic life by which the curse of sin, and sin itself, is restrained even though the link with salvation is lacking.”20 Evil though the state often is in its actions, it is not, as such, the domain of the devil.

VI There it is: a theological case for the liberal democratic state. In his little book, Liberalism, John Gray remarks that “liberal principles enjoin the limitation of government by stringent rules. Liberal government cannot be other than limited government.” Liberal government cannot be other than limited government because, he says, “all strands within the liberal tradition confer upon persons rights or claims in justice which government must acknowledge and respect and which, indeed, may be involved against government.”21 Liberal theory in all its variants is grounded in the “commitment to individual liberty.”22 I think it is a deficiency in Kuyper’s thought that he does not say more than he does about those rights of the individual that place a limitation on the scope of the authority, not only of the state, but of the authority structures of civil society and family life generally; it is clear, from passages I have quoted and many others, that he thinks individuals do have such rights. But what I find fascinating in Kuyper is that he focuses on what completely escapes the attention of classic liberal theory. When we are discussing the authority of the state—its nature, its grounds, its proper scope—the situation is not just that there is the state and its authority on the one hand, and individuals and their rights on the other, certain of those rights constituting a limitation on the scope of the state’s authority. In addition to individuals and their rights there are all the authority structures of civil society and family life, each of these having authority over certain human beings for certain aspects of their lives. This thick and rich array of authority structures also sets limits on the scope of state authority.

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My reason for presenting Kuyper’s line of thought in this essay, however, is not first of all that I find his “take” on liberal democratic society fascinating and important, though I do; my reason is that we find in him what is all too often nowadays assumed to be impossible, namely, a theological case for the liberal democratic state, the theology in question being somewhat unusual but nonetheless orthodox, though definitely not fundamentalist. As I made clear earlier, however, Kuyper’s case is only a relatively recent example of what was once common; namely, theological arguments for the rights and liberties definitive of the liberal democratic state. It is not true that the secularists have all the good tunes. I judge that, in our current world situation, it will be increasingly important for all of us, religious and nonreligious alike, Christian, Jewish, Muslim, whatever, to acknowledge and remember that.

NOTES 1. Nicholas Wolterstorff, “A Religious Argument for the Civil Right to Freedom of Religious Exercise, Drawn from American History” in Wake Forest Law Review, 36:2 (Summer 2001): 535–56. 2. Francis Newton Thorpe, comp., The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the State, Territories, and Colonies Now or Heretofore Forming the United States of America, 7 vols. (Washington, D.C.: Government Printing Office), 3:1689 (Maryland Constitution of 1776, “Declaration of Rights,” art. XXXIII), 5:3082 (Pennsylvania Constitution of 1776, “Declaration of Rights,” art. II). 3. Richard Rorty, Philosophy and Social Hope (London: Penguin Books, 1999), 169. 4. Abraham Kuyper, Calvinism: The L.P. Stone Lectures for 1898–1899: Six Lectures Delivered in the Theological Seminary at Princeton (New York: Fleming H. Revell Co., n.d.), 118. Henceforth I will abbreviate this title with “C” and incorporate references within the text. 5. From the speech, “Sphere Sovereignty,” to be found in James Bratt, Abraham Kuyper: A Centennial Reader (Grand Rapids, Mich.: Eerdmans, 1998), 467. 6. Thus, when it comes to accounting for the authority of the state, Kuyper opposes both the theory of popular sovereignty, which assumes that individuals somehow possess sovereignty intrinsically, and the theory of state sovereignty, which holds that states possess sovereignty intrinsically. See Calvinism, 108–113. 7. See Calvinism, 108–113. 8. Cf. C 133–34: “[E]very magistrate is in duty bound to investigate the rights of God, both in the natural life and in his Word. Not to subject himself to the decision of any church, but in order that he himself may catch the light which he needs for the knowledge of the Divine will.” 9. “The magistrate is an instrument of ‘common grace’, to thwart all license and outrage and to shield the good against the evil [ . . . ] . he is instituted by God as His Servant, in order that he may preserve the glorious work of God, in the creation of humanity, from total destruction” (C 104–105).

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10. “Sphere Sovereignty,” in Bratt, Abraham Kuyper: A Centennial Reader, 472. 11. Bratt, Abraham Kuyper, 473. 12. Bratt, Abraham Kuyper, 467–68. 13. From vol. I of Kuyper’s Common Grace (De Gemeene Gratie); selection translated in Bratt, Abraham Kuyper: A Centennial Reader, 169. 14. From vol. II of Common Grace, in Bratt, Abraham Kuyper: A Centennial Reader, 178. 15. From vol. I of Common Grace, in Bratt, Abraham Kuyper: A Centennial Reader, 181. 16. Bratt, Abraham Kuyper, 168. 17. Bratt, Abraham Kuyper, 167. 18. Bratt, Abraham Kuyper, 181. 19. From vol. II of Common Grace, in Bratt, Abraham Kuyper: A Centennial Reader, 192. 20. Bratt, Abraham Kuyper, 193. 21. John Gray, Liberalism (Minneapolis: University of Minnesota Press, 1989), 73. 22. Gray, Liberalism, 45.

8 Preserving the Natural: Karl Barth, The Barmen Declaration: Article 5, and Dietrich Bonhoeffer’s Ethics Carl J. Rasmussen

THE CHURCH STRUGGLE AND THE BARMEN DECLARATION After his ascent to power in 1933, Hitler focused on the church.1 In a Christian country, given his policy of Gleichschaltung, the process of bringing the economic, political, and social life of Germany under National Socialist control, this focus was necessary. Consequently, in 1933 and 1934 church politics figure prominently in the Third Reich. On July 20, 1933, the Reich and the Vatican entered into a Concordat (with ratification in the fall), a major policy victory for Hitler. Hitler, a nominal Catholic, believed that he understood the Catholic Church and that with the Concordat he had effectively neutralized it as a political force. The Protestant churches were another matter. The twenty-eight Protestant Landeskirchen, the Protestant regional churches, established under law as a loose confederation, were by no means a unified entity. But they had legal status within Germany as established churches. Hitler wanted to unify them as a single entity and to bind them with something like a Concordat with which to create a counterbalance to the Catholic Church. As with the Concordat, he wanted to neutralize the Protestant church as a political force. Above all, in 1933 and 1934, Hitler wanted to avoid any open confrontation between the church and state. Unification of the Protestant churches was not controversial. The churches themselves established a constitution for a united German Evangelical Church, still a confederation which preserved the independence of the Landeskirchen and the exclusive Protestant confessions. Given Hitler’s totalitarian objectives, Klaus Scholder has called this constitution “a highly problematical compromise.”2 This new church constitution was confirmed 201

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by law on July 14, 1933. The leadership of this German Evangelical Church was necessarily controversial. Although the choice of a Reich Bishop was reserved to the church, Hitler helped coerce the election of a Reich Bishop of his choice, one Ludwig Müller, a former military chaplain whom Hitler had chosen as his personal representative on Protestant affairs. Müller became a symbol of totalitarian intervention in the Protestant church under the Third Reich. One would not consider him qualified to serve as a bishop. He supported Hitler. He was anti-Semitic. His sympathies lay with the “German Christian movement” (Deutsche Christen), a Protestant movement aligned with National Socialism that wanted the German Evangelical Church to become purely a bureaucratic arm of the Third Reich. In the ensuing conflict within the Protestant churches, Müller effectively lost power, though not position, but by the late 1930s other and larger events overshadowed Hitler’s church policy. Müller and his supporters succeeded in evoking the unwanted opposition. The point of controversy was the Aryan paragraph. The Aryan paragraph, a provision of 1933 law, excluded Jews from the civil service. Müller and others wanted to apply the Aryan paragraph to the German Evangelical Church, which would mean the dismissal from the church of all non-Aryan clergy and church officials. Even many Protestants loyal to Hitler considered ecclesiastical application of the Aryan paragraph to be heretical. National Socialist ideology and Protestant dogmatics confronted each other over the Aryan paragraph in the church.3 From the ensuing “Church Struggle” emerged the Confessing Church, a movement within the established German Protestant churches that opposed National Socialist ideology in the Protestant church, initially in the form of the Aryan paragraph. The Confessing Church was not necessarily a political movement. Some Confessing Church members were themselves Nazis. Consequently, the Confessing Church remains controversial. On the one hand, the Confessing Church opposed National Socialism in the church. It refused to remove Jewish Christians from the established Protestant churches, with their legal status, rights, and privileges. Its most able leaders openly opposed Hitler, and they suffered the consequences. Karl Barth, the great Reformed theologian and the primary author of the Barmen Declaration, was removed from his faculty position at Bonn. He returned to his native Switzerland as an active opponent of the Third Reich. Former U-boat officer and Lutheran pastor Martin Niemöller was arrested in 1936. From 1937 to 1945, Niemöller was a prisoner, primarily in Sachsenhausen and Dachau. The Lutheran theologian Dietrich Bonhoeffer joined the resistance movement within the German military counter intelligence. He was arrested in 1943 and executed in April 1945. Finally, the Confessing Church promulgated the Barmen Declaration of 1934, the most important Protestant confession since the Reformation. As Klaus Scholder

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has suggested, Barmen changed the Protestant understanding of state and church more deeply than any other event since the Reformation.4 On the other hand, the Confessing Church was not a political movement. Its concern was the integrity of the church. It did not oppose the Third Reich politically. It did little to oppose the Reich’s anti-Semitic policies outside of the church.5 In the words of Eberhard Bethge, if the Confessing Church initially created a certain “room to breathe in or a roof to live under, free in the midst of a system of terror,” under the stress of that terror, by 1938, the Church Struggle had “disintegrated as a mismanaged political struggle; the alternatives became secret resistance or truce.”6

THE BARMEN DECLARATION: ARTICLE 5 AND KARL BARTH Among the uncomfortable facts with which the Church Struggle in Germany confronts us is the extent to which in 1933 a Christian, and specifically Protestant, “political theology” gave unqualified support to Hitler. German political theology was not marginal. It was supported by some of the most prominent academic theologians in the country. As Klaus Scholder puts it: Political theology was undoubtedly one of the most astonishing developments of the year 1933. . . . It was not church-political domination that was at issue but theological truth. In fact, the distinctive feature of political theology was not just assent to National Socialism, even if that was specially emphasized. The number of those in both churches who endorsed National Socialism extended far beyond the circle of political theology. The distinctive feature lay, rather, in the fact that at this juncture the political revolution became a principle of theological epistemology—the starting point for a way of theological thinking which felt that it had to understand itself anew from this point. . . . National Socialism and Christianity, Third Reich and church mutually conditioned and explained one another, disclosed themselves and were responsible to one another. Solidarity with the National Socialist movement not for political but for theological reasons was the demand of political theology in the summer of 1933. And this was clearly only superficially a political problem: basically it was a theological problem.7

What sort of theological problem? At issue was Reformation doctrine about the state, primarily represented in Luther’s doctrine of the two kingdoms (Zwei Reich Lehre), and particularly as interpreted in the German Luther Renaissance following World War I.8 Luther taught that God rules the world in a twofold way, through two realms, the spiritual and the secular. The spiritual realm is the kingdom of Christ, the church understood as a spiritual society, the communion of

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saints (sanctorum communio). The secular realm includes all institutions that preserve temporal life, which culminate in the state. Particularly in Protestant Germany, the doctrine came to support a view that the state commands a status independent of revelation, as an order of creation, under the governance of natural reason. The two kingdoms are separate and not to be confused, but they have a mutual interrelation in this life.9 This doctrine led in Protestant Germany to a close connection between state and church: The Protestant church viewed church government as part of the secular order and entrusted it to the state. The church reserved to itself only the proclamation of the Gospel. The state ensured external order.10 But in Germany in the 1930s, political theologians advanced the claim of secular authority over the church in a particularly aggressive way. Given the doctrine of the two kingdoms, if the external order of the church is determined by a totalitarian state, what is left for the kingdom of Christ? In the German Church Struggle, the two kingdoms found themselves at odds. In Germany in the 1930s, secular authority became a theological problem without precedent since the Reformation. Protestant theologians who supported the Third Reich claimed that God manifested Himself in history through the German Volk and the Third Reich (both divine orders). As Emmanuel Hirsch, one of the most talented, prodigious, and disturbing of German Protestant theologians, wrote in 1933: If the Protestant church in genuine inner solidarity with the German Volk, as that Volk is now emerging, wishes really to proclaim the gospel, then it has to take as its natural standpoint the circle of destiny of the National Socialist movement. If it does not do this, then it becomes alien and different, and loses the natural precondition for speaking and hearing the gospel in proclamation.11

Wilhelm Stapel, another prominent theologian, wrote: The totalitarian state controls all now, all morality. The church has all that concerns the kingdom of heaven. . . . Law and order in the church are subordinate to the state. . . . The morality which the church teaches must be that which grows in the hearts of the Volk to which the church brings the gospel, for morality belongs to the nomos of the Volk. . . . [The state] can appoint bishops when it likes and as many as it likes. It can establish community boundaries as it likes. It can transcend the Landeskirchen and organize a Reich church to suit itself.12

The Ansbacher Ratschlag (Ansbach Counsel) of 1934, a response to the Barmen Declaration by Professor Werner Elert and subscribed to by Paul Althaus, both of the Erlangen faculty, asserted, among other doctrines:

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2. The Word of God speaks to us as Law and Gospel. . . . 3. The Law, “namely the immutable will of God” . . . encounters us in the total reality of our life as that reality is given in the light of God’s revelation. It binds each person to the situation in which he is called by God, and obligates us to the natural Orders to which we are subjected, such as family, Volk, race [i.e., blood relation]. . . . 4. The natural Orders, however, do not inform us about the demanding will of God. They are grounded in their connection with our total natural existence, but they are, at the same time, the means through which God creates and preserves our earthly life. Whoever in faith is certain of the grace of God in Jesus Christ experiences also in these orders “unvarnished divine goodness and mercy.” . . . 5. In this acknowledgment of believing Christians we are grateful to God the Lord that God has given our Volk in its need the Führer, as the ‘pious and trusted governor’ and wants to provide good government in the National Socialist State. . . . We therefore consider ourselves responsible before God to work with the Führer in our calling and estate.13 The defense of the Third Reich by Protestants in the 1930s raises complicated and troubling questions, and the issues go beyond the church. German Protestant political theology may be one answer to the question of how Germans in the 1930s could have given Hitler such broad support.14 Certainly from the point of view of orthodox Protestant theologians who opposed them, the German political theologians were liberal Protestants, grounded in the German Enlightenment, and to this extent German political theology represents a version of liberal theory turned very wrong. As Hans Asmussen put it in a famous commentary on the Barmen Declaration: it is false doctrine when other authorities are set up for the Church beside the incarnate Word in Christ and the Word proclaimed in him. That is what is happening today. . . . When we protest against this, we do not do so as members of our people in opposition to the recent history of the nation, not as citizens against the new State, nor as subjects against the civil magistrate. We are raising a protest against the same phenomenon that has been slowly preparing the way for the devastation of the Church for more than two hundred years.15

Karl Barth, reflecting much later on the Barmen Declaration in his monumental Church Dogmatics, supported and expanded on Asmussen’s analysis: This was how matters stood when the Church was confronted with the myth of the new totalitarian state of 1933—a myth at first lightly masked, but unmasked soon enough. It need not be said that at first the Church stood entirely defenceless before this matter and simply had to succumb for the time being.

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Once again, as so often for two hundred years—or so it seemed—the representative of the new trend and movement knocked on the door of the Church. . . . Exactly the same thing had happened at the beginning of the 18th century with the reviving of the humanism of the stoa; or a century later with Idealism; or, in its train, with Romanticism; and the nationalism of the same period; and a little later socialism: they had all wanted to have their say in the Church. And in the face of these clear precedents there could be no basic reason for silencing this new nationalism of race.16

Even at the time, Barth very clearly understood German political theology in support of the Reich as a development of the Enlightenment—the prior “two hundred years” of church history.17 In the eighteenth, nineteenth, and early twentieth centuries, German Protestantism had developed into a secular, anthropomorphic, and humanist reconstruction of the Christian faith, a cultural Protestantism. The German Christian movement, a naive liberal Protestant movement, followed this path. Into the vessel of liberal Protestantism, they poured Nazi ideology. For them Jesus was an Aryan ethical teacher and the kingdom of God was wholly immanent in the German culture of Volk and Reich.18 If the German Christians were unreflective, the more sophisticated academic political theologians who supported the Reich were not. In reaction to the crises of World War I and the Weimar Republic, they ostensibly rejected the liberal tradition. Indeed, the German political theologians viewed their claims for an ethics of the orders of creation, including state, Volk, and family, was an attack on the superficial constructions of liberal individualism.19 Emanuel Hirsch vigorously defended his Reformation orthodoxy against the charges by dialectical theologians to the contrary.20 The academic political theologians who supported the Third Reich claimed to represent the authentic Reformation against liberal heresy. But Karl Barth firmly disagreed. Their protestations notwithstanding, Barth considered Hirsch and his allies the worst development of Protestant liberalism. We must understand the stridency of Barth’s theological work from the period in this light. If liberal Protestantism in Germany had degenerated into a virulent National Socialism, then liberal theory itself—and in its entirety—was implicated. If the German Enlightenment had historically been a bulwark against the devastation of the wars of religion, it was no longer the guarantor of a humane order. The liberal theory that emerged from the Enlightenment was complicit in the coming chaos. Barth is strident precisely because the Church Struggle exposed a crisis of liberal theory that few understood with any clarity.21 Barth had to struggle with his own allies as well. In 1934, shortly after the Barmen Declaration itself, Barth publicly attacked his friend Emil Brunner. Brunner had made the mistake of involving himself in the question of natural theology and addressing an essay on the subject to Barth. As we

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have seen, the question of natural theology at the time was not some innocent, abstract academic question: it involved precisely the relationship of the Protestant church to the Nazi state. In response to Brunner, Barth said simply “No!” Barth’s essay “No!” represents perhaps his most detailed theological analysis of the liberal foundations of the German political theologians—and it was written in the midst of the struggle.22 Although Barth’s immediate target was Brunner, behind Brunner Barth saw Hirsch, Paul Althaus, and the other sophisticated Protestant political theologians who supported the Third Reich. In the essay, Barth denies any independent revelation in nature. Any such revelation would be “one of those creatures of man’s philosophical phantasy, one of those principalities and powers of the world of ideas and demons, which most certainly do exist and which reveal themselves and are known to us quite concretely.”23 As to the orders of creation (which traditionally included the state), “[o]n the basis of instinct and reason one man may proclaim one thing to be an ‘ordinance of creation,’ another another thing—according to the liberal, conservative or revolutionary inclinations of each. Can such a claim be anything other than the rebellious establishment of some very private Weltanschauung as a kind of papacy?”24 If Barth rejects the orders of creation, he also rejects Nazi claims on the church: “only holy Scripture may be the standard of the Church’s message . . . the Church must be free from all national and political restrictions!”25 Indeed, although Roman Catholicism (for example in St. Thomas) recognizes a doctrine of the natural, serious Roman Catholics must reject the political theologians’ view of natural theology: “according to Roman Catholic theology, conditioned as it is by St. Thomas (and which therefore incorporates almost all of Augustine!) a true knowledge of God derived from reason and nature is de facto never attained without prevenient and preparatory grace. . . . According to the Roman Catholic, reason, if left entirely without grace, is incurably sick and incapable of any serious theological activity.”26 As Barth’s remarks suggest, his opponents rely on an inappropriately optimistic view of reason derived from the Enlightenment. Barth argues that Brunner misconstrues the Reformers because he views them through a liberal lens: even Brunner’s definitions differ from those of the Reformers, “[f]or the substance of these definitions has since, in an idealist form, i.e. in that of a secularised Thomism (which has found its mature form in Schleiermacher’s Glaubenslehre) but without consciousness of its real connections, become part of the armoury of modernist Protestantism.”27 Indeed, Barth turns Brunner’s ostensible criticism of the Enlightenment and Rationalism back on Brunner. Barth places Brunner historically in an “intermediary period, that of the ‘rational orthodoxy’ of the late seventeenth or early eighteenth centuries.” Brunner actually anticipates “a new Schleiermacher,” leading to “a repetition of all the mishaps of the nineteenth

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century until, at the beginning of the twenty-second, we should again be more or less where we are now!”28 As I have suggested, Barth’s real opponents are the “German Christians,” but even more specifically the “most undesirable figures of the evangelical Germany of to-day (which are not to be found among the ‘German Christians,’ but half way between them and the confessional front),”29 the “half- or three-quarter ‘German Christians,’” specifically Hirsch, Althaus, and Stapel, whom he names among others.30 Barth views the work of these political theologians as a liberal heresy: a “Neo-Protestant,” “enthusiastic,” “theologia naturalis vulgaris,” contrary to the Reformation confessions.31 As he elaborated in the Gifford lectures at the University of Aberdeen in 1937 and 1938: The human idea of the Absolute, which we are accustomed to think of as identical with God, is the reflection of the world, and in the end the disastrous reflection of human personality. Once again, if we had equated this idea with God, we would have set up the image of an idol. We have not to draw our knowledge of who God is from what we think we know about eternity, infinity, omnipotence and invisibility as conceptions which bound our thought. On the contrary, we have to draw our knowledge of eternity, infinity, omnipotence and invisibility from what we can know about God, from what God has said to us about himself. If we choose to take the first way . . . what we have defined, would not be God. On the contrary, we would have defined in one way or another the essence of that which is not God, we would have defined the creature, and in the end, as Ludwig Feuerbach has irrefutably shown, the essence of man himself.32

The theologians of the Confessing Church faced an extraordinary problem. It appeared as if the Enlightenment had flowered historically into a totalitarian assault on the church. And the Enlightenment is a seamless web. To displace any strand is to unwind the fabric. If the Confessing Church opposed theological liberalism, it must oppose liberal theory entire, from epistemology to political theory. It must reconstruct the church anew from within. The sole recourse of the Confessing Church was to return ad fontes to the Reformation. However, the Reformation teaches the doctrine of the two kingdoms, from which Hirsch and his allies drew doctrinal support. As a consequence, the Confessing Church found itself in an internal theological struggle on this issue (among others), bound both to honor and to amend Reformation teaching concerning the state. It made its case in a confession of faith: affirming the authority of God over the totalitarian state. Relying on the historic Reformation confessions, which preceded the Enlightenment (and sub silentio abjured it), the Confessing Church proclaimed the transcendence of God over the Volk and the Reich. The Confessing Church’s opposition to the Third Reich came not from liberal theory, but from an orthodox proclamation of the faith.33

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The opening words of Barmen, Article 1, confess Christ. In so doing, they place the proclamation of the church over mere ideology: Jesus Christ, as he is attested for us in Holy Scripture, is the one Word of God which we have to hear and which we have to trust and obey in life and in death. We reject the false doctrine, as though the Church could and would have to acknowledge as a source of its proclamation, apart from and besides this one Word of God, still other events and powers, figures and truths, as God’s revelation.34

From this foundation Barmen concludes that the state, though still appointed with a divine task, is not an independent order of creation. Barmen speaks about the church in Article 5: 5. “Fear God. Honor the Emperor.” (I Peter 2:17.) Scripture tells us that, in the as yet unredeemed world in which the Church also exists, the State has by divine appointment the task of providing for justice and peace. [It fulfills this task] by means of the threat and exercise of force, according to the measure of human judgment and human ability. The Church acknowledges the benefit of this divine appointment in gratitude and reverence before him. It calls to mind the Kingdom of God, God’s commandments and righteousness, and thereby the responsibility both of rulers and of the ruled. It trusts and obeys the power of the Word by which God upholds all things. We reject the false doctrine, as though the State, over and beyond its special commission, should and could become the single and totalitarian order of human life, thus fulfilling the Church’s vocation as well. We reject the false doctrine, as though the Church, over and beyond its special commission, should and could appropriate the characteristics, the tasks, and the dignity of the State, thus itself becoming an organ of the State.35

Barmen, Article 5, was the most difficult article to draft.36 As Klaus Scholder suggests, “With the fifth thesis of Barmen the synod had also undertaken a redefinition of the relationship between state and church which did not follow the traditional patterns of confessional doctrines of the state.”37 On its face, it appears to be an authoritarian statement, and indeed it is. But its authoritarianism is qualified. The state has a divine “task,” not a divine status. This nuance is crucial. Barmen, Article 5, modifies the two-kingdoms doctrine. It puts the proclamation of the church beyond the reach of the state and thus allows the church to articulate the task of the state. Eberhard Fiedler, a church lawyer who supported Barmen, argued that the state cannot impose a law that contradicts the nature of the church or the character of its confession and that it is impossible to

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separate internal and external order in the church.38 As Cochrane points out about Barmen 5: The doctrine of the separation of the two kingdoms, the spiritual and the temporal, was tacitly rejected. Article 5 taught that ‘the State has by divine appointment the task of providing for justice and peace’ and that the Church ‘calls to mind the Kingdom of God, God’s commandment and righteousness, and thereby the responsibility both of the rulers and the ruled.’ It rejected the false doctrine that ‘the State . . . should or could become the single and totalitarian order of human life.’39

As Cochrane further points out: Barmen does not speak of the State as an order of creation or preservation. It does not speak of the origin and being, the ontology of the State, but of the task which the State has by divine appointment within the realm of grace. The State is not an order of creation and therefore not an event, power, figure, and truth which the Church has to hear and obey as God’s revelation, as the ‘German Christians,’ and even Emil Brunner, were teaching.40

Klaus Scholder suggests that, “Here, in thesis and repudiation, no more was said than was a responsible statement by the church. At no point had the church gone beyond its limits and yet here too it had announced political opposition to the Third Reich and its state in the most fundamental way conceivable.”41 Because it opened a “breathing space” within the totalitarian state, Barmen exposed itself to accusations of Enthusiasm:42 it seemed to claim for the church a special divine right to override duly constituted secular authority. Barmen’s apparent Enthusiasm arguably tends toward Christian theocracy or Christian antinomianism. Werner Elert, author of the Ansbacher Ratschlag, denounced Barmen, Article 1, as a “provocative reiteration of the antinomian heresy of the Reformation period,” as a rejection of the authority of a divine law beside that of the Gospel.43 Paul Althaus attacked Barmen in similar terms: With reference to the first article [of Barmen] he [Paul Althaus] regretted the omission of any mention of the law of God and of a revelatio generalis and argued that prior to the saving revelation there is a partial revelation, a selfwitness of God in the reality of the world and ourselves: and a justitia civilis that corresponds to God’s will even if it does not justify a man before him.44

The attacks of Elert and Althaus claimed the high ground of Reformation doctrine. They accord with the theological traditions of German Lutheranism, at least as understood in the Luther renaissance. They have every appearance of supporting what is sought in a liberal theory of the state: a secular, rational, ethical standard for the state outside of Christian revela-

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tion. Indeed, even Protestant theologians outside of Germany, who pressured the Reich to cease intervention in church affairs (particularly violent intervention), were theologically closer to Elert and Althaus than they were to the Confessing Church.45 But Elert and Althaus were very wrong. For Elert and Althaus the Aryan clause expressed the divine general revelation (because state and Volk are orders of creation), and the Third Reich is a just civil order. The fact that Althaus’s theological position led him to these conclusions is a catastrophe. It is the catastrophe that made Barmen necessary. In response to views like those of Althaus, Barmen was compelled to sever any doctrine of natural orders, and with it the liberal theory within which a doctrine of natural orders flourished, like a dark flower. It is the Gospel alone that Barmen proclaims. It is through the Gospel alone that Barmen opposed the Third Reich. But there was a cost. The cost of Barmen is the status of the “natural” in Protestant theology. The only “breathing space” Barmen acknowledges within the totalitarian state is that provided by God’s revelation in Christ. Barmen provides no room for the diversity of natural reason or indeed for other religious confessions. It excludes all other claims. But because of Barmen, particularly in light of Barth’s work, the natural became an empty category. As a consequence, and as Barmen’s opponents astutely suggest, it can be construed as a claim for Christian theocracy, according to which the only valid political claims are those of the Confessing Church. We might ask of Barmen: What about the claims of those outside of the church, in particular the victims of the Reich? What indeed of the claims of the Jews, whether secular or observant? Barmen does not give an answer. This lack of clarity is part of its unfinished business. Can the Confessing Church live in community with non-Christians? Can it do so now, in a pluralist, post-Christian West?

PRESERVING THE NATURAL: DIETRICH BONHOEFFER’S ETHICS In light of this tortuous background, Dietrich Bonhoeffer’s discussion of “the natural” in his Ethics is of extraordinary importance.46 Bonhoeffer wrote the Ethics between 1940 and 1943 while he was engaged in the resistance movement against Hitler. Barmen belonged to the preceding decade. Assembled and published after his execution, the Ethics is both a fragment and his major work. In his Ethics (which I take to be, among other things, a commentary on Barmen), Bonhoeffer expressly deviates from the teaching of the Reformers about the nature of secular authority. If the Reformers found the origin of government in the Fall, in sin, Bonhoeffer argues to the contrary that “the true basis of government is . . . Jesus Christ Himself.”47 Bonhoeffer’s Christological orientation, like the qualifying language of Barmen, Article 5, upholds

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the integrity of the church against government: Government serves Christ, not an independent nature. However, Bonhoeffer also acknowledges that government has an inherent authority in its divine mandate: Government is given to us not as an idea or a task to be fulfilled but as a reality and as something which “is.” . . . It is in its being that it is a divine office. The persons who exercise government are God’s ‘ministers,’ servants and representatives (Rom 13.4). . . . Like all existing things, government, too, stands in a certain sense beyond good and evil; this is to say, it possesses not only an office but also a historical existence. An ethical failure does not eo ipso deprive it of its divine dignity. This situation is clearly expressed in the saying ‘my country right or wrong.’48

Bonhoeffer does not abandon the two-kingdoms doctrine, but he recasts it theologically. Government alone holds the sword of justice. The church has standing to make its proclamation to government, but the church does not act in the place of government. Neither he nor Barmen deviate from an authoritarian view of government, but Bonhoeffer, like Barmen, makes government answerable to a divine mandate. It is within this context, during the crucible of the resistance, that Bonhoeffer revisits the question of “the natural” in order to recover it as a category, or, in his terms, “preserve” it. I suggest that he does so because he understands that Protestants must seek the ground on which they can stand with humanity in the ruin of a secular, postwar world. Bonhoeffer discusses the natural within the realm of the “penultimate.” In Bonhoeffer’s terms, the “ultimate” is the Reformation doctrine of justification: the “origin and essence of all Christian life” are comprised in the justification of the sinner by grace alone.49 But there is a span of time prior to justification: a way must be traversed that leads up to the last word of justification. This, for Bonhoeffer, is the “penultimate,” and the penultimate must be preserved.50 It is within the penultimate that Bonhoeffer places the natural, the form of life preserved by God after the Fall with reference to the way in which it is directed to the coming of Christ.51 In a clear reference to Barmen, Bonhoeffer observes that the natural has fallen into discredit in Protestant ethics, and the ground has been left to Roman Catholicism alone. This lack has left Protestantism without a “clear word” for the “burning questions” of natural life.52 To this problem Bonhoeffer turns his attention. A threshold issue is epistemology. If the proclamation of the church is disclosed in revelation, the natural must be disclosed to natural reason alone. Therefore, the question of the natural rests on the question of reason. Bonhoeffer cannot avoid the enormous confusion over the question of reason. Does natural reason, on its own, outside of revelation, have any capacity to understand the natural order? Bonhoeffer (in response to Barth’s “No!”) says yes:

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Reason, then, is wholly embedded in the natural; it is the conscious perception of the natural as it, in fact, presents itself. The natural and reason are related to one another as the form of being and the form of consciousness of the preserved life. The suitability of reason for the grasping of the natural derives, therefore, neither from the spontaneity of reason, as though it were itself to create the natural, nor yet from the divinity of reason, which would enable it to adapt itself to the natural, but rather from the fact of the Fall, in which reason is just as much involved as is the rest of the world. Certainly reason does not now cease to be reason, but it is now fallen reason. . . . Reason perceives the universal in what is given; and thus the given natural, as reason perceives it, is a universal. It embraces the whole of human nature. Reason understands the natural as something that is universally established and independent of the possibility of empirical verification.53

Bonhoeffer elucidates this view in a terse footnote of extraordinary significance: This view differs from the Catholic theory in that (1) we regard reason as having been entirely involved in the Fall, while according to Catholic dogmatics reason still retained a certain essential integrity, and (2) according to the Catholic doctrine, reason may also grasp the formal determination of the natural, the second of these principles being connected with the first. Our view differs from the Enlightenment view in that it takes the natural to rest upon what is objectively given and not upon the absolute spontaneity of reason.54 In this footnote, Bonhoeffer, with his characteristic clarity, goes to the heart of the problem and solves it. He first denies German Idealism (and with it liberal theory): reason does not rest on its own spontaneity. If it did, reason would merely be an engine for generating the “events, powers, figures and truths” that Barmen rejects. Reason is capable of something. Those who claim Bonhoeffer as a modern or postmodern theologian must respond in some adequate way to this point. One should take care to consider that, among the Protestants, the moderns and the postmoderns took the wrong side of the debate over political theology in Germany in 1933.55 What Bonhoeffer asserts in his account of reason is the framework for a Protestant philosophical realism, which acknowledges that reason can apprehend universals, prior to thought and language, outside of revelation. His claim is characteristically bold. In the West, Christian realism has been the domain of the Thomists. The Reformers were resolutely pessimistic about reason. But Bonhoeffer’s position—particularly his placement of the natural within the penultimate—clarifies that the Reformers’ pessimism was theological. It is not attributable to any philosophical skepticism or idealist philosophical nominalism. Luther’s theological pessimism about natural reason is quite different from Kant’s philosophical skepticism about pure reason. For Bonhoeffer, the natural is “objectively given,” beyond thought or language, in the universal. Reason does have some capacity to

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apprehend this universal, even if this capacity is significantly impaired by the Fall. Moreover, while Bonhoeffer rejects German Idealism (which accords with Barmen) he acknowledges the possibility of a natural theology, something the Barmen, theologians vehemently opposed. But here, too, Bonhoeffer assuages the concerns of Barmen. Unlike the Reformers and the German political theologians, Bonhoeffer denies that the natural establishes any standard for the government as an order of creation independent of the Gospel. He rejects the position that government is based in natural law.56 On this point, Bonhoeffer argues that the Reformers (and with them the German political theologians) were wrong about government. They grounded it in the Fall. He grounds it in Christ, qualifying its mandate. If the German political theologians used the natural to uphold Volk and Reich, Bonhoeffer finds something new in the natural. For him the natural affirms the individual over against the government.57 The theme of the natural leads Bonhoeffer to a consideration of natural life and the right to natural life. Bonhoeffer argues that the natural constitutes rights in the individual person. This placement of rights prior to duties runs counter to traditional German political thought, “[b]ut our authority is not Kant; it is the Holy Scripture, and it is precisely for that reason that we must speak first of the rights of natural life.”58 In his discussion of the natural, Bonhoeffer takes the view from below, the rights of the oppressed, rather than the view from above, the prerogatives of the state.59 In a text that is scrupulously silent about any right of resistance to the state, Bonhoeffer acknowledges that a natural right has no content without a remedy.60 From this theoretical foundation he discusses natural right against the Nazi eugenics laws. Like the Ethics itself, Bonhoeffer’s discussion of the natural dissolves into a fragment, certain notes about “The Natural Rights of the Life of the Mind.”61 The notes only suggest to us how significant our loss of this text is. Clearly, Bonhoeffer’s account of the natural is incomplete. It is a foundation rather than a finished edifice. He extends the foundations of Barmen to open the church to discourse with a world come of age, a world for him in ruin.

NOTES 1. The single best study in English of the Church Struggle in Germany is Klaus Scholder, The Churches and the Third Reich, 2 vols., trans. John Bowden (London: SCM Press Ltd., 1987–1988). Scholder’s study does not go beyond 1934. Important supplements are J. S. Conway, The Nazi Persecution of the Churches 1933–1945 (London: Weidenfeld and Nicholson, 1968) and Ernst Christian Helmreich, The German Churches Under Hitler: Background, Struggle, and Epilogue (Detroit: Wayne State University Press, 1979). A very useful short study is Eberhard Bethge, “Troubled Self-In-

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terpretation and Uncertain Reception in the Church Struggle,” in Franklin H. Littell and Hubert G. Locke, The German Church Struggle and the Holocaust (Detroit: Wayne State University Press, 1974), 167–84. A very useful study of the Barmen Declaration is Arthur C. Cochrane, The Church’s Confession Under Hitler (Pittsburgh: The Pickwick Press, 1976). For additional discussion, see Jack Forstman, Christian Faith in Dark Times: Theological Conflicts in the Shadow of Hitler (Louisville, Ky.: Westminster, John Knox Press, 1992); Victoria Barnett, For the Soul of the People: Protestant Protest Under Hitler (New York: Oxford University Press, 1992). For a discussions of the German Christian movement and German political theology, see Doris L. Bergen, Twisted Cross: The German Christian Movement in the Third Reich (Chapel Hill: The University of North Carolina Press, 1996); Robert P. Ericksen, Theologians Under Hitler: Gerhard Kittel, Paul Althaus, and Emanuel Hirsch (New Haven, Conn.: Yale University Press, 1985); James M. Stayer, Martin Luther, German Saviour: German Evangelical Factions and the Interpretation of Luther, 1917–1933 (Montreal: McGill-Queen’s University Press, 2000); James A. Zabel, Nazism and the Pastors: A Study of The Ideas of Three Deutsche Christen Groups (Missoula, Mont.: Scholars Press, 1976); and John Stroup, “Political Theology and Secularization Theory in Germany, 1918–1939: Emanuel Hirsch as a Phenomenon of His Time,” Harvard Theological Review, 80:3 (1987): 327, 346–47. For excellent biographies of two prominent participants, see Eberhard Bethge, Dietrich Bonhoeffer: A Biography, trans. Eric Mosbacher, et al., revised and ed. Victoria J. Barnett (Minneapolis: Fortress Press, 2000); Eberhard Busch, Karl Barth: His Life from Letters and Autobiographical Texts, trans. John Bowden (Grand Rapids, Mich.: Eerdmans, 1994); and James Bentley, Martin Niemöller (London: Hodder and Stoughton, 1984). 2. Scholder, Churches and the Third Reich, I: 378. 3. The Aryan paragraph had a convoluted history in the Protestant church under the Third Reich. While it was adopted by a Synod of the Old Prussian Union, it led to problems for Germany in international ecumenical circles. By September 1933, the German Foreign Office advised against adopting the Aryan paragraph in the German Evangelical Church, preferring to achieve its goals through “administrative means.” For discussion, see Scholder, Churches and the Third Reich, I, 272–74, 468–88, and 530–31; Helmreich, German Churches Under Hitler, 144–49; and Bergen, Twisted Cross, 144–49. Eberhard Bethge, “The Holocaust and Christian Anti-Semitism: Perspectives of a Christian Survivor,” Union Seminary Quarterly, 32 (1977), 141–55, provides a helpful discussion. 4. Scholder, Churches and the Third Reich, II, 147–48. The best sources on Barmen in English are Scholder and Cochrane, Church’s Confession Under Hitler. There is a growing literature. See Hubert G. Locke, ed., The Church Confronts the Nazis: Barmen Then and Now (Lewiston, N.Y.: Edwin Mellen Press, 1984) and The Barmen Confession: Papers from the Seattle Assembly (Lewiston, N.Y.: Edwin Mellen Press, 1986); Shelly Baranowski, The Confessing Church, Conservative Elites and the Nazi State (Lewiston, N.Y.: Edwin Mellen Press, 1986); Robert T. Osborn, The Barmen Declaration as a Paradigm for a Theology of the American Church (Lewiston, N.Y.: Edwin Mellen Press, 1992); and George Hunsinger “Barth, Barmen and the Confessing Church Today [1984]” and “Where the Battle Rages: Confessing Christ in America Today,” in George Hunsinger, Disruptive Grace: Studies in the Theology of Karl Barth (Grand Rapids, Mich.: Eerdmans, 2000).

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5. Bonhoeffer, in his Ethics, expresses personal and communal guilt on the part of the church: “I am guilty of cowardly silence at a time when I ought to have spoken. I am guilty of hypocrisy and untruthfulness in the face of force. I have been lacking in compassion and I have denied the poorest of my brethren. . . . The Church confesses that she has witnessed the lawless application of brutal force, the physical and spiritual suffering of countless innocent people, oppression, hatred and murder, and she has not raised her voice on behalf of the victims and has not found ways to hasten to their aid. She is guilty of the deaths of the weakest and most defenceless brothers of Jesus Christ.” Dietrich Bonhoeffer, Ethics, ed. Eberhard Bethge, trans. Neville Horton Smith from the sixth German edition (New York: Simon & Schuster, 1995), 113–14. For further discussion about the Confessing Church and the Jews, see Barnett, For the Soul of the People; Shelley Baranowski, “The Confessing Church and Anti-Semitism: Protestant Identity, German Nationhood, and the Exclusion of the Jews,” in Robert P. Ericksen and Susannah Heschel, eds., Betrayal: German Churches and the Holocaust (Minneapolis: Augsburg Fortress Publishers, 1999); Katherine Sonderegger, That Jesus Christ Was Born a Jew: Karl Barth’s “Doctrine of Israel” (University Park: The Pennsylvania State University Press, 1992); Alejandro Zorzin, “Church Versus State: Human Rights, the Church and the Jewish Question (1933),” in John W. De Gruchy, ed., Bonhoeffer for a New Day: Theology in a Time of Transition (Grand Rapids, Mich.: Eerdmans, 1997) and Eberhard Bethge, “Christology and the First Commandment,” Holocaust and Genocide Studies, 4 (1989): 261–72. Susannah Heschel, “Nazifying Christian Theology: Walter Grundmann and The Institute for the Study and Eradication of Jewish Influence on German Church Life,” Church History, 63 (1994): 587–605. See Cochrane, Church’s Confession Under Hitler, 206–207; Bentley, Martin Niemöller, 175–78; Bonhoeffer, Ethics, 110–16. 6. Bethge, “Troubled Self-Interpretation,” 172, 168. 7. Scholder, Churches and the Third Reich, I, 430. 8. See Stayer, Martin Luther, German Saviour. 9. Paul Althaus, The Ethics of Martin Luther, trans. Robert C. Schultz (Philadelphia: Fortress Press, 1972) 43–82 ; W. D. J. Cargill Thompson, The Political Thought of Martin Luther (Sussex/New Jersey: Harvester Press/Barnes & Noble Books, 1984), and “The ‘Two Kingdoms’ and ‘The Two Regiments’: Some Problems of Luther’s Zwei-Reiche Lehre,” Studies in The Reformation: Luther to Hooker (London: Athlone Press, 1980), 42–59; and Stayer, Martin Luther, German Saviour. The doctrine was not unique to Luther. Calvin taught a similar doctrine, based on Luther. See Cargill Thompson, The Political Thought of Martin Luther, 153, and John Calvin, Institutes of the Christian Religion, trans. Henry Beveridge, 2 vols. (Grand Rapids, Mich.: William B. Eerdmans, 1972), Book IV ch. xx, “Of Civil Government.” 10. See Scholder, Churches and the Third Reich, II, 6–7. 11. Hirsch, quoted in Scholder, Churches and the Third Reich, I, 420. 12. Stapel in 1933, quoted in Scholder, Churches and the Third Reich, I, 422. 13. The Ansbacher Counsel, quoted in Forstman, Christian Faith in Dark Times, 201. See also Scholder, Churches and the Third Reich, II, 163–64. 14. For a discussion of this question, see George L. Mosse, The Crisis of German Ideology: Intellectual Origins of the Third Reich (New York: Grosset & Dunlap, 1964). 15. Asmussen’s full Memorandum is reproduced in Appendix VIII to Cochrane, The Church’s Confession Under Hitler. The language quoted is on 254–55.

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16. Karl Barth, Church Dogmatics, II ‘27(2), ed. G. W. Bromiley and T. F. Torrance (Edinburgh, Scotland: T. & T. Clark, 2000), 174. Barth discussed the prior two centuries in a separate major work: Protestant Theology in the Nineteenth Century, trans. Brian Cozens and John Bowden (Grand Rapids, Mich.: Eerdmans, 2002). For another illuminating discussion of the quandary of contemporary Protestantism, see Hans W. Frei, The Eclipse of Biblical Narrative: A Study in Eighteenth and Nineteenth Century Hermeneutics (New Haven, Conn.: Yale University Press, 1974). 17. As Barth wrote in the journal Zwischen den Zeiten (1933): “I can see in the German Christians nothing else than the final most complete, and worst offending of the essence of modern Protestantism which, unless it is overcome, will have to make the evangelical Church ripe for Rome. I regard Stapel’s statement about God’s law (that it is identical with the nomos of the German people) as treason against the gospel. I think that this proposition amounts to setting up the Man-God of the eighteenth and nineteenth centuries in a form that is much worse than in the Harnack-Troeltsch era because it is much more axiomatic and much more concrete.” Quoted in Cochrane, Church’s Confession Under Hitler, 71. 18. See Bergen, Twisted Cross, and Zabel, Nazism and the Pastors, for further discussion of the German Christian movement. The German Christian Heinrich Bornkamm, by embracing individualism, authoritarianism, and the Kantian categorical imperative within the German Christian view of Luther, illustrates Barth’s case: “The young theologian Fichte conceived of the moral world as the only reality, and set up, in the place of the sensational attractions of the prevalent world-view of the English-French theoreticians of perception, the I as the supporting mid-point of the cosmos. Only on the Lutheran soil could a philosophy have been victorious that set up as a basic fact the metaphysical results of the strong possibility of the I. Kant’s sublime law, that the moral allows no connection with the natural desires of men for good fortune, was only taken over from Luther’s deeper commandment that is called for out of the fulfilling of the law ‘in love and freedom.’ . . . The valiant affirmation of this world that Leibniz voiced in the statement that it was the best of all possible, and the overflowing ‘yes’ to the fate that Nietzsche also voiced out of a much deeper view of its torn-apart reality, stand under Luther’s great shadow.” Bornkamm, quoted in Zabel, Nazism and the Pastors, 53. 19. For example, see Emil Brunner, “Natural Theology,” in Natural Theology: Comprising “Nature and Grace,” by Professor Dr. Emil Brunner, and The Reply “No!” by Dr. Karl Barth, trans. Peter Fraenkel (London: Geoffrey Bles: The Centenary Press, 1946). Brunner was a Swiss ally of Barth who undertook a defense of natural theology. Barth did not take this well. Brunner wrote: “The point at issue between the primitive and reformed doctrine on the one hand and the Roman Catholic and Thomist doctrine on the other is not whether the idea of the ordinances of creation and preservation should determine the behaviour of Christians, but how it should do so. Only the individualism and the rationalism of the Enlightenment destroyed the appreciation of this central idea and the nineteenth century regained it only in some rare instances, even where theologians were determined to return to the Bible and the Reformation. The result of this abandonment is an invincible individualism. All attempts to operate with the concepts of love or with those of “law” or “commandment” without the help of the concept of the ordinances, lead either to rationalistic social constructions (liberalistic doctrines of State and matrimony) or

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to an uncertain attitude towards the ordinances of society as given factors, vacillating between acknowledgment and rejection” (Brunner, 52). And Brunner was Barth’s ally! Hirsch expresses this view in harsher terms: “Were freedom to violate the Nomos [law], it would deny in so doing the demanded fulfilling of the god-sent Horos [limit] itself, and would not be freedom, but demonism. That is the real meaning of the struggle today against individualism and liberalism. . . . The struggle proceeds against the individual decision, making honor a delusion, to be a self-empowered individual and want to follow no flag, therewith separating one’s freedom from his own honor that is given in community life—the honor of free enclosure and participation within the confines of the Nomos, the honor of leadership and following that both serve the whole. He who does not hear the call of the flag cannot know what freedom is.” Hirsch, quoted in Zabel, Nazism and the Pastors, 65. 20. See Forstman, Christian Faith in Dark Times, 79–91. 21. The bibliography on Barth in connection with this issue is extensive. In particular, see Carl J. Rasmussen, “Karl Barth on St. Anselm: A Theological Response to the Dilemma of Liberal Theory,” Graven Images, 1 (1994): 37–51. 22. For Barth’s reply “No!” to Brunner’s “Nature and Grace,” see note 19. In more reflective circumstances, Barth took up the theme in the Gifford lectures at the University of Aberdeen in 1937 and 1938, published as Karl Barth, The Knowledge of God and the Service of God According to the Teaching of The Reformation Recalling The Scottish Confession of 1560, trans. J. L. M. Haire and Ian Henderson (London: Hudder and Stoughton, 1955). In the Scottish confession of 1560, Barth finds a congenial text to expound, except in its allowance that the state administers the church. This would allow Hitler to reform the church, 225–26. 23. Barth, “No!”, 81. 24. Barth, “No!”, 87. 25. Barth, “No!”, 87. 26. Barth, “No!”, 96. 27. Barth, “No!”, 101. 28. Barth, “No!”, 110–12. 29. Barth, “No!”, 103. 30. Barth, “No!”, 72. 31. For specific references, see Barth, “No!”, 85, 109, 166. Barth accuses the political theologians of enthusiasm. The Confessing Church had been accused of the same thing by the political theologians. See note 41 below and surrounding text. 32. Barth, The Knowledge of God and the Service of God According to the Teaching of the Reformation, 32–33. 33. This is not to say that liberal theologians did not oppose the Reich. The Confessing Church included theologians of various persuasions. But the crucible of the Church Struggle forced the Confessing Church to rediscover its orthodox foundations. 34. All quotations from the Barmen Declaration are from Cochrane, Church’s Confession Under Hitler, 237–42. 35. Quoted in Cochrane, Church’s Confession Under Hitler, 241–42. 36. Scholder, Churches and the Third Reich, II, 152. 37. Scholder, Churches and the Third Reich, II, 154. Similarly, Arthur Cochrane has argued: “This article represents a distinct advance upon the teaching of the Lutheran

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and Reformed Confessions of the 16th and 17th centuries. If at this point Barmen had been literally faithful to the Confessions, it would have had to admit that Hitler had the right to reform the church, to appoint a Reichminister for church affairs, to name a Reichbishop and Church Committees, as [the theologian Karl] Barth observed in his exposition of John Knox’s Confession of 1560. As a matter of fact, this part of Reformation teaching was a severe handicap to the Confessing Church. Cochrane, Church’s Confession Under Hitler, 284. See Barth, The Knowledge of God and the Services of God, 225–26. 38. See Scholder, Churches and the Third Reich, II, 145. On Barmen, Article Five, see Scholder, II, 152–54. 39. Cochrane, Church’s Confession Under Hitler, 207. 40. Cochrane, Church’s Confession Under Hitler, 285. 41. Scholder, Churches and the Third Reich, II, 154. 42. Enthusiasm is the claim of a special inspiration under which the individual claims freedom from the constraints of all other authority. See Althaus, Ethics of Martin Luther, 61–64. Barth turns the tables and accuses the political theologians of Enthusiasm in the Gifford lectures: “the ordinance which governs the Christian life cannot be our private concern. . . . On the one side we have the Roman church which, on the basis of natural rights and its own tradition, both of which it alleges to be divine, dares to subject Christian life to a statute devised and formulated by man and consisting in regulations dealing with cult, law and morals. And on the other side—the opposite extreme—are the varying courses taken by a religious enthusiasm, which wishes to submit Christian life to the dictation of what is called the Spirit, or of an ‘inner light’ which is alleged to be divine, or simply to the dictates of the conscience of every individual. Both these extremes are based on the erroneous belief that the ordinance governing the Christian life is committed into man’s hands. For it obviously amounts to the same thing whether the place of the Divine Lawgiver is usurped by a church which decides with divine authority, or by an individual who decides with divine freedom. In the one case as in the other we have to do with a form of false service of God. In both forms man is secretly his own master; in both forms the apparent order of the Christian life is really disorder and in both forms the Christian life is in fact at the mercy of chance and individual will. When viewed from the standpoint of the basis, the power and the essence of the Christian life, and from the standpoint of the true service of God, neither form can be substantiated or justified.” Barth, The Knowledge of God and the Service of God, 126–27. The question of Barth’s enthusiasm is still subject to debate. See George Hunsinger, “Karl Barth and the Politics of Sectarian Protestantism: A Dialogue with John Howard Yoder,” in Disruptive Grace, 114–28. 43. Quoted in Cochrane, Church’s Confession Under Hitler, 183. See also Scholder, Churches and the Third Reich, II, 164–65. 44. Cochrane, Church’s Confession Under Hitler, 184. See also Scholder, Churches and the Third Reich, II, 165. 45. “As the Swiss ecumenist Adolf Keller put it with remarkable frankness, ‘a large part of the ecumenical world is on the side of official German theology in one form or the other,’ in the controversies between a theology of ordinances of creation and a theology of redemption in Christ. ‘That natural theology of creation,’ Keller wrote, ‘which characterizes the “German Christians” can also be found in Anglicanism, in

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modern world-Protestantism and in American activism. But the theology of the Confessing Synod, above all in its strictly dialectical version, is not fully shared either in the Lutheran north or in the Anglican and American west.’” Scholder, Churches and the Third Reich, II, 235. 46. This section develops themes from my article, “Justice, Justification and Responsibility in Bonhoeffer’s Ethics,” Graven Images, 4 (1998): 86–105. 47. See Bonhoeffer, Ethics, 334–41. Bonhoeffer expressly rejects natural law, except as subordinate to Christ, 333–34. 48. Bonhoeffer, Ethics, 334. Bonhoeffer remained a Lutheran authoritarian: see Rasmussen, “Justice, Justification and Responsibility.” Unlike the German Christians, however, he denied that the Volk had any special theological or ontological standing. See Ethics, 340–41. 49. Bonhoeffer, Ethics, 120. 50. See Bonhoeffer, Ethics, 120–42. 51. Bonhoeffer, Ethics, 148. 52. Bonhoeffer, Ethics, 142–43. 53. Bonhoeffer, Ethics, 146. 54. Bonhoeffer, Ethics, 146, and fn. 5. 55. For an example of recent claims that Bonhoeffer is among the moderns or postmoderns, see Wayne Whitson Floyd, Jr., and Charles Marsh, Theology and the Practice of Responsibility: Essays on Dietrich Bonhoeffer (Valley Forge, Pa.: Trinity Press, 1994). 56. Bonhoeffer, Ethics, p. 336. See generally the discussion of church and state, 327–48. Note that these sections are not included in the new seventh edition of the Ethics. 57. For a discussion of the Ethics as an authoritarian text, see “Justice, Justification and Responsibility.” 58. Bonhoeffer, Ethics, 150. 59. The phrase is from Bonhoeffer’s essay “After Ten Years,” in Letters and Papers from Prison, ed. Eberhard Bethge (New York: Collier Books, 1972), 1–17. 60. “If one asks whether the individual is entitled to defend his natural rights, then the answer must clearly be yes. But in all circumstances he must defend the right in such a manner as to carry the conviction that it is not the individual but God who guarantees it.” Bonhoeffer, Ethics, 154. 61. Bonhoeffer, Ethics, 184–85.

9 Materialism and Transcendence John Milbank

I One prominent aspect of French and French-influenced Marxisant thought since the 1950s has been its attempt to supply Marxism with a more adequate ontology than that contained within the writings of Marx and Engels themselves. Partly because Continental thought tends to distinguish itself from a perceived scientistic bias of analytic philosophy, this attempt is marked by the search for a non-reductive materialism. Reductive materialism imagines matter as atomistic, mechanical, passive, and inert, and tends to explain away meaningful action and volition as illusion. Non-reductive materialism imagines matter as that which can itself occasion subjectivity and meaning, because it is the site for the emergence of a spontaneous and unpredictable energy. Since, with the exception of the Stoics, Spinoza, and Nietzsche, the history of materialism is mostly the history of reduction, those in quest of a non-reductive version must characteristically borrow from Platonic-Aristotelian, Idealist, and even theological thought if they are to develop a sufficiently enriched version of material processes. (The Stoics, Spinoza, and Nietzsche also made these problematic borrowings.) This quest seems inevitable and justified: even though there is a British tradition of reductively materialist Marxism, it is difficult to reconcile this with Marx’s absolute valuation of subjects freely reaching their full productive and expressive potential. Nor can one simply dispense with ontology in order to concentrate on practice: Marxism, and indeed every socialism, requires an account of human nature, and of the role of human beings within the cosmos; otherwise it is not clear why there is something now 221

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lacking that needs to be emancipated, nor why one should suppose that we live in a reality within which such emancipation is possible. Must such an ontology indeed be a materialist one? Yes, in the sense that socialism sees earthly justice as crucially concerned with material distribution. Yes, also, in the sense that Marxism is right to see all human knowledge as linked with human conventions of justice, and so as inseparable from historically arising patterns of production and exchange. This connection of notions of truth with notions of the good was earlier understood by Catholic theology in terms of the “convertibility” of such “transcendental” concepts. A link between Marxist historicism and Catholic metaphysics can be provided by the axiom of the eighteenth-century Catholic thinker Giambattista Vico, who proclaimed (in its full version) that the transcendentals verum and bonum also convert with a new transcendental, the factum, meaning the historically and even eternally “constructed.” (Vico was cited but weakly understood by Marx.) Much later, and in the wake of Marx, the Orthodox theologian, socialist, and sometime Marxist economist Sergei Bulgakov made a similar affirmation: the Christian East has failed to include within the work of “deification” (as the East describes “salvation”) the collective process of historical construction, while the West has falsely seen it as a secular, transcendentally indifferent work of the merely human will, not as a synergous working with God that seeks through making (art and labor) itself the telos of the good and the vision of the true. It followed that, for Bulgakov, human knowledge as well as human virtue was an entirely economic matter, collectively possessed in the rhythms and dispersals of exchange and production.1 In this way one has a mode of historical materialism. Yet for Bulgakov the human general economy (of signs and numbers, as well as commodities and prices) participates in and is guided by the divine economia of Orthodox theology: the entire “distribution” of God’s eternal being in the single work of creation and redemptive re-creation. If one looks by contrast at recent secular attempts to develop a materialist ontology that will undergird socialist aspirations, it is striking that, even in these cases, an appeal is increasingly made not just to idealist philosophy—to Hegel, to Schelling, and to their heir (despite everything) Heidegger—but also to theology: to notions of the Via Negativa, of the absolutely other, of grace, hope, and agape. What is the reason for this? I shall venture an explanation. If matter is to be more than inert, and even capable of subjectivity and meaning, then it must be innately more than a spatially or mechanically limited substance; it must rather be forcefully self-transcending. Our only human access to the notions of force and self-transcending development involves experiences of volition and meaning: hence self-transcending matter is inevitably conceived as somewhat etherealized and idealized. This

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may be perfectly consistent with materialism, since we have no ultimate notion of what matter consists in: to imagine it as only dense and inert, is merely to confine it to one mode of ideality that forms a background for volition—namely the negative hyle that shaping ideation and determined purposeful intending always presuppose. If, however, matter is totally etherealized and idealized, then real material processes become epiphenomena of logical processes, or else the magical outcome of pure willing, or again some combination of both. As soon as one says something like “matter” can, in certain instances, think and, in certain instances, will, then the unthinkable background of hyle tends to fade away, bearing with it all the irrational and latent impulses of nature and humanity that help to shape historical occurrences in favor of what we think we can fully grasp, namely meaningful intending processes. In which case one must say that materialism is lost in idealism and humanism. Yet one cannot prevent this lamentable outcome by the reduction of all subjectivity to the blind urgings of hyle. In that case, conversely, the desire of humanity for emancipation is itself reduced to an epiphenomenal illusion that conceals what is really going on: namely meaningless evolutionary processes. In that case one cannot will—except as an entertaining illusion—the true human future in the name of the fulfillment of the real, but only, at best, as an honest collapsing back of the human illusion into prehuman sequences. Since these are mechanical or else obscurely impulsive, they certainly cannot sustain anything like the reality of peace or justice: viewed anthropomorphically, they seem to sustain rather the rule of Heraclitean violence. It might well be considered that, if this is reality, then it is capitalism that gets nearest to acknowledging it without ever quite doing so, since it reduces the meaningful goal to an agon round an empty fetish, which in this case, far from being finally an illusion, as classic Marxism would have it, would rather be the closest possible willed and meaningful manifestation of the real reign of the blindly nonmeaningful. The forces of so-called progress—science, rationalism, and materialism—are far more precisely allied to capitalism than Marx realized. Hence an ontology that legitimated socialism would have to discover a way of locating ideality in matter without idealizing matter away, nor finally canceling ideality. This condition means that many of the notions characterizing German idealism become inappropriate, since they tend to involve either or both a purely transparent realized logical process, or else where they admit an inaccessible presupposed ground or foundation, something like a purely autonomous self-sustaining, inexplicable action or willing, that is in this way again transparent and self-explanatory. In either case, the closure and transparency of thinking and willing must both negate and foreclose their mysterious energies and potentials. What one needs instead are notions of thought and of willing that themselves sustain an excess of reference beyond

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themselves, that involve unpredictable creativity and the lure of a selfexceeding desire. “Thinking for oneself” in an exercise of Kantian autonomy will cancel material density; likewise exercising purely your own spontaneous choice for good and evil à la Kant will also cancel this density: in either case we exit from muddy appearances to dwell in the crystalline spheres of the noumenally monadic. By contrast, if thought is open and assertive, and does not quite know what it is that it thinks, and if accompanying will is obscurely compelled before and beyond itself, then the density and fathomless force of matter is sustained. Where, though, can one derive such notions of thinking and willing? The answer must be in theology and in modes of philosophy that make reference to the transcendent—because theology alone posits both that there is an ultimate principle, which is thinking and willing, and that this principle is, for our thought and volition, only remotely accessible. In this way our thought and volition become gifts that are received, and therefore remain more consonant with our bodies, which are clearly things that we have received and never entirely master. Likewise our thought and volition, when taken as remote echoes of an entire infinite thought and volition, can be seen as un-self-grounded and obscure to themselves. Just as we do not know what our bodies are finally capable of, so we do not know the entire implications of what we think, nor what we ultimately will when we will. Here abstraction and the grand gesture both expand and yet reassert our obscure embodiment. (This position accords much more with the Aristotelian account of eide and hyle as well as psyche than any idealist dialectic of idea and ground.) Our thought is, in the first place, characteristically creative rather than reflective, yet in creating we always transform matter, and we cannot command the arrival of a transformative idea. Ideas come to us, by inspiration, as if from on high, and for this reason they are well-received by latencies of the material ground. In this way the theological appeal to transcendence alone sustains a non-reductive materiality and is the very reverse of any notion of idealism. In fact, idealism is always most at home within immanence, for its essentially pagan Greek horizon is to do with the confrontation between active logos and chaotic hyle within a single closed cosmos. Without the gods or the Platonic forms, however, this pagan immanence is more perfectly realized by German idealism: logical processes outworking themselves through time are not received gifts, but the unfolding of autonomy albeit through contradiction and return. Although this principle of autonomy stands in contrast to the alien self-enclosure of matter, nonetheless it is included with matter within the same cosmos, and for just this reason it is in a dualistic rivalry with the material principle. To assert the self-origination of immanent ideation is ultimately at the expense of the material ground.

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By contrast, genuinely theological notions of thinking and willing do not regard thought and matter as poles in dialectical tension after the manner of Fichte, Hegel, and the early-to-middle Schelling. Instead, in the manner we have seen, they are blended through ultimately shared proclivities. If, in the end, both thought and matter exhibit a resistant density and an excessive potential, then they do so because their combined meaningful finitude is together an arriving gift, which, if regarded as such, indicates an ultimate creative source. Since finite logos is every bit as created as finite hyle, thought and matter are here leveled and equated with reference to a transcendent source, without this equating abolishing their relative real difference, nor even abolishing the relative hierarchical superiority of thought over matter. For the ultimate creative source of an entire hierarchical series is not simply “on top” of that series in the way that ideas lie “above” matter for idealism; rather, since, unlike the topmost rung of the series, the source gives the entire series, it tends from the absolute point of view to level what remains, within the series, hierarchically distinguished. In this way, it is only the monotheistic doctrine of creation that allows a non-reductive materialism in theory and in practice: which allows us, for example, to value humanity above the cosmic and animal, and yet also in a more ultimate gesture to proclaim that the highest value lies in establishing all these three in peaceful harmonious perfection. This perspective alone, then, allows us the vision of a non-fascistic, non-anti-human ecology. One can also go a little further. An infinite thought, an infinite volition, which is entirely “simple” (in no way, even formally, distinguished within itself), as Thomas Aquinas put it, and also self-sustaining cannot be truly akin to any finite thought or volition with which we are familiar. First of all, as self-sustaining, it has a certain property that we can only imagine in somewhat material terms, as for us it is individual material substances that appear nearer to being self-sustaining (if not self-initiating, like thought, which, however inversely, lacks by comparison in relative self-standing). Secondly, as infinite, and therefore non-bounded, it must sustain, yet without imperfection, a certain non-bounded “incompletion,” or rather and inversely it must sustain a “completion” beyond any concept we have of the complete, which always involves the bounded. In this way, the kinship of our finite thought with matter, as mysterious, non-commanded, and boundless in potential, is in a certain paradoxical way sustained in that which is replete and absolute—just because it is infinite. It is important to remember here that the attribution of this “disorganized” principle of the infinite to the One, or to God, arose in philosophy only with the Neoplatonists and the church fathers—it was not allowed by the ancient Greeks. Finally, one can note that the church father Tertullian, even though he was orthodox, and in no way a pantheist, affirmed that God’s lack of a bounded body does not imply the immateriality of God. For Tertullian, just as the

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Creator God was boundless thought and will, so also he was boundless materiality.2 To achieve an adequate ontology, therefore, materialist socialism needs to invoke theology. Perhaps this is why Walter Benjamin thought that, in the future, philosophical thought would have to sublate itself into theology, rather than, as Hegel thought, the other way around. I am not, however, trying to say that recent French or French-influenced Marxisant thinkers explicitly argue in the way that I have done above. Instead, I am claiming that this line of thought is an implicit, logical horizon that draws them forward unawares and that they grasp in only a thoroughly fragmentary and partial fashion. Nevertheless, this logic is shown in their reasonings so far: Jacques Derrida sustains the openness of signs and the absoluteness of the ethical command by recourse to (or as he supposes—wrongly, in my view—by way of a radicalization of negative theology); Gilles Deleuze sustains the possibility of a deterritorialization of matter and meaning in terms of a Spinozistic virtual absolute; Alain Badiou sustains the possibility of a revolutionary event in terms of the one historical event of the arrival of the very logic of the event as such, which is none other than Pauline grace; and Slavoj Žižek sustains the possibility of a revolutionary love beyond desire by reference to the historical emergence of the ultimate sublime object that reconciles us to the void constituted only through a rift in the void. This sublime object is Christ. In the case of Badiou and Žižek, a further feature has become notable.3 They are rightly discontented with the submergence of the socialist left in a liberal celebration of plurality and otherness. Such celebration, they correctly aver, is inauthentic, because it usually wants nothing actually to do with the exotic “other”—this is why it insists that the ultimate ethical gesture is a visual presentation of exotic otherness at a distance. Likewise, this tendency admits the other to ethical significance in the guise of victimhood: this means that we have human solidarity only in our weakness, rather than in our positive creative aspirations. One can object here that such an ethical stance may well desire that the other substantively fulfill herself; however, if this fulfillment does not concern our human project in common, then its content is, for the regarding other, a matter of ethical indifference: once again this moral agent lapses into the character of a mere anemically detached spectator. Socialism instead requires our solidarity in the name of the project of positive affirmation of life and more abundant life: we are to love others as active expressive affirmers and not, or not primarily, as victims. As theology puts it, we are to love people because—and even only in so far as—they display the image of God. But such a love involves mutual recognition of our positive realizations and capacities. Therefore, what is valued here in every case is not the ineffably and inexpressibly different, but rather what is

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universally acclaimable and shareable, albeit precisely because it is unique and particular. Only as unique and particular does a value clearly “stand out”; but this standing out renders it sometimes universal and also participable—albeit in the mode of nonidentical repetition. This new concern for the question of the universal, for what binds us together, goes beyond the Levinasian/Derridean concern with an irreducible plurality beyond totality. Totality is not here reinstated, because we are not united within a total complete cosmos, but rather around uniquely arising events, whose new logic, whose new rhythms, we all come to embrace. This shift has a very marked impact on the attitude of Marxisant thought toward religion. For Derrida so far, a secularized negative theology suggests a more radical removal from the specificities of religious tradition, and the emergence of a rootless and nomadic postmodern religiosity oriented toward a negativity upheld by no finally positive infinite ontological pole. Since, though, for Derrida, the deconstructive urge has never performed its work, this rootless religiosity is only ceaselessly parasitic on all the various religious traditions that are all more or less affirmed, even if notable prominence is given to Judaism and Christianity. By notable contrast, Badiou and Žižek’s suspicion of the politically correct discourse of pluralism causes them also unequivocally to favor the example of one religion over that of all the rest, and this religion is, of course, Christianity. This new favoring of Christianity is an integral part of their desire to reassert the human universality and singularity of the socialist project beyond all received historical traditions, over-against postmodern liberal political pluralism, whose last word is “respect difference,” and whose religiosity is scarcely distinguishable from the new-age recommendation of self-cultivation in negative removal from given social processes. Why is an attention toward Christianity so integral in this fashion? The answer is that Christianity is seen as, uniquely, the religion of universalism. Badiou and Žižek are perfectly correct about this, and they expose thereby all the incipient triviality of recent theological talk about a particular “Christian language game” as valid and invalid of all other language games and so forth. Once again theologians have been caught out in their inauthentic pusillanimity. In deference to liberal fashion, they have foresworn Christian claims to uniqueness, to a transcending of the Jewish legacy and so forth. Now they are wrongfooted by Marxist atheists, who recall us to the facts of historical phenomenology: Christianity was the very first enlightenment, the first irruption of an absolutely universal claim. The Greeks were mostly uncertain whether women and barbarians could philosophize; certainly slaves could not. The New Testament, by contrast, asserts that all, slave and free, male and female, Jew, Greek, Roman, and barbarian can recognize God in the resurrection of Christ, and moreover insists that this potential

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of universal recognizability alone qualifies a truth as a universal truth. The merely substantively universal truth of Greek philosophy is thereby disqualified in its universality, and therefore in its truth, after all. It is certain, of course, that Judaism already displayed a universalizing drift; it does not, however (nor, for that matter, does Islam), quite make recognition of its particular laws a condition for the universal recognition of the God of all nations. In this way it does not quite enact a universal event, which has the consequence of relativizing in practice cultural particularity and allowing a universal human association. The objection here that surely Christ is yet more utterly specific than the Jewish law entirely misses the point (as Hegel realized, albeit in an insufficient mode). Christ is so specific as to be immediately the most general—we can all identify with the adroit, fluid, savage, gentle, wise, miracle-working, and suffering man—just as we can all, from pole to pole, identify with Charlie Chaplin or Buster Keaton, but cannot easily identify with, say, Japanese conventions of politeness. Both St. Paul and Kierkegaard were in a way right (though also in a way wrong, as I have just implied) to elide the specifics of Christ’s life from our purview: what matters is to know that God was manifest not in any human state or notion of generality, but in one—which is to say as a dependent consequence in any—human life, death, and resurrection. Precisely because Jesus escapes any general framework, given that any general set can always be subsumed in a further set, Jesus is universal. The universality of Christianity is not, therefore, a matter of subjective opinion or of faith in the first place; it is rather a matter of logic. Christianity is universal, because it invented the logic of universality; it constituted this logic as an event. Such an invention and constitution could not have consisted in a mere discovery of universal truth as the Greeks mostly supposed (though arguably not Socrates and Plato) because philosophy failed adequately to grasp the logic of universality. As Badiou argues, philosophy (but again not really Plato on Badiou’s reading of that thinker) seeks to place everything within its right place within a given totality, a finite (note, not infinite) cosmos. However, this means that every thing and every person must identify with their fixed place in the cosmos, and can only, for an ultimate gesture, relate to the cosmos as a whole, because, since the cosmos is a whole, it has no relation outside itself, and therefore has itself no place, and no identity. It might as well be a void. Thus in Hinduism, there are plural ethics appropriate to specific hierarchical position, but there is no general universal good. At the general level, as the Bhagavad Gita teaches, all ethics are relativized, and the only thing shared is nirvana: but that is not really shared, since at such a point of elevation things cease to be shared, since there are no longer any subjects of sharing. Likewise (to shift the compass perspective rapidly from the Far East to the Farthest West, old and new), Alexis de Tocqueville remarked, in Democracy

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in America, that, in an aristocratic society like England, no one is interested in general ideas and indeed finds them almost impossible to grasp, as ideas are always relative to the rules and manners of class position (a situation still somewhat true today), whereas, in democratic America (still also true?), they are interested in general ideas because people see themselves as all humans in general.4 One can, however, add to Tocqueville that there would be no American idea of humanity in general outside the constant repetition of the specific event of the American Revolution, nor indeed (as Tocqueville himself made clear) outside the repetition of the universal man Christ, in American religiously constituted civil society. One could even argue that Tocqueville unwittingly displays the truth that universality emerges only from the event: Without the impulse toward free association generated by religion, he argues (one could say without its impulse toward collective repetition of religion’s founding event), American democracy tends to dissolve into a myriad of individualisms and particularisms that will cancel out any sense of common humanity. In its place will reign a sway of propagandistic fashion at once over and yet on behalf of the majority—we today can well term this “fascism.” Hence Tocqueville’s arguments regarding America and the danger of capitalistic corruption of its project recognizes implicitly not only the generation of universality by an event but also the religious dimension of this logic. Philosophy, placing things in a cosmos, does not then establish the universal. But an event that exceeds the given totality establishes itself as more than a specific place or position. Rather it exhibits itself as a universal nonidentically repeatable possibility. Such an event can arise only in time, as only in time can established totalities be sundered. In order to be valued as universal, however, the event must also be regarded as “eternal” in the sense of having universal pertinence: this is what Badiou argues. We can now see how Badiou and Žižek add a new dimension to the Marxisant debate about religion. All the participants in effect turn to theology because this discourse alone permits an ideal materialism that does not result in the out-and-out triumph of idealism. The turn to the secularized via negativa never recognizes any degrees of more-or-less correct manifestation of the absolute, or any advance toward the absolute that is not equally and inversely a regression, however, because it does not admit any real transcendent superabundant plenitude within which religious performances might remotely participate. Since all religious images fail equally, all religiously ideal discourses are validated in their very invalidation. In this way, the mysterious “surplus” in the ideal that allows it to be fused with matter and not to conceal matter, is merely handed over to the absolutely and impotently negative, which, unlike the true theological negative of Dionysius the Areopagite, is not really going anywhere. This leaves the positive aspect of religious ideality—the attempt at Cataphasis—paradoxically replete in its

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very failure. Hence religious ideas, for this pluralist ideology, sink to the level of ideality, even though they compose no inexorable logical train, save the absolutely inexorable one of mechanical deconstruction. Thus if one values primarily the other, this statement means the other taken in the place of God as purely negative in such a fashion that a hypostatized negativity going nowhere is, in effect, a replete and autonomous idea that effaces all material appearing. (Alternatively one values the other in his totalized idiosyncratic specificity, closed off from the mysterious negative surplus in which he does not participate—and so once again one has a replete abstractable idea. Levinas and Derrida rightly refuse such an option, but they never consider the third possibility of a negative surplus mediated by the phenomenally manifest.) This is why Derrideanism is idealist. In the face of this idealism, Badiou insists that a powerful human thought or idea is not something replete and inert, and therefore cannot be unmediably diverse in its contingency, but rather is universal by virtue of that very contingency. It follows that one must not merely negate its positivity in a Derridean fashion, as though such positivity always threatens to congeal into a presence of a general sway at variance with the idea’s contingent particularity, since Derrida considers true difference to be only the about-to-happen of difference, which sustains itself as different only in the moment of negation of prior sedimented difference that has always lapsed back into presence in the very instance of its occurrence. The positivity of the idea need not be negated in this manner, because the idea acquires an “eternal” presence not by suppressing its specificity, but precisely by asserting it. Its presence is not that of something static and closed, but rather of something forever-after, fertile, and generative of endlessly further insights that more and more disclose its originally latent depths. For this reason, Badiou first of all celebrates not, ironically à la Derrida, the plurality of religions, but the singularity of the absolute religion, Christianity, which emerged as the event of that which elicits universal recognition. The event of universal love, the event of life-over-against death, the event of the universal offer of forgiveness and reconciliation, and a new mode of sociality based on the reciprocal exchange of this offer. It makes no sense to refuse this event, at least as a horizon of possibility. Debate and dialogue at this point would be ridiculous, short of the emergence of some more universal horizon. For these are the very conditions of universality, as we imagine it. In the second place, Badiou stresses not the movement of signifying or forceful negation, but the arrival of grace as what interpellates us as subjects in the first place. Not absence, then, but a superabundant and always specific presence. Whereas, for Derrida, we can keep trying to surrender an illusory self-autonomy in relation to a constitutive absence, death, contentless gift, and so forth, for Badiou we are, in our original self-present

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contingency, clearly not self-possessed and autonomous, but given—given in our very concrete materiality, which sustains our conscious action and reflection. And whereas, for Derrida, all religions might be the staging places for negation, for Badiou only Christianity offers divine grace, in the sense that Christianity simply is the thought that we are redeemed or liberated by the arrival of grace that we can all share in our bodies and as loving people, not by human systems of law or human philosophies and mystical practices—even that of absolute negation.

II Do Badiou (and Žižek also, in so far as he concurs) get it right? I have so far described ways in which they do get it right: ways in which Christianity is aligned with materialism, ways in which socialist universalism requires Christian universalism, and not, by contrast, postmodern pluralism or else new-age gnosis. However, I do not think this goes far enough. To put it briefly, I think that their atheistic, essentially Hegelian versions of Christianity sustain very well an ontology of revolution, but not an ontology of socialism. I think, furthermore, that, despite their respective intentions, what they still offer us is gnostic Christianity, negative dialectics, and captivity to an inexorable law. By contrast, I believe that, to think the possibility of the socialist future, we have to travel much further out of the idealist captivity of the logos, beyond dialectics, beyond tragic gnosis, beyond mystical nihilism. We have to reinvoke much more of the spirit of the ancient Greeks, of the Latin South, of the Slavic East, of pre- and anti-idealist Germany, and of the Celtic-Scandinavian-Saxon North. Finally, we have to strip ourselves of a million prejudices and false historical conceptions and consider again the radical content of orthodox Catholic Christianity. In the end, this tradition and materialist socialism require each other. Let us consider briefly, in more detail, the proposals of Badiou and Žižek. First of all, Badiou. More than any others of the soixante-huitarde philosophers, he has traveled some distance in the direction that I think is required. This journey is ironic because he is the most militantly atheist of any of these thinkers. But, just because he is such, he is the most free of the taint of what can be called “mystical nihilism.” That is to say, Badiou rejects what he rightly identifies as the concealed Plotinianism of both Derrida and Deleuze’s thought—namely, the idea that there is a kind of “real” absolute absence, or void, or virtuality, from which everything emerges and back into which everything dissolves. This view is all too like Plotinus’s One, which (unlike the Platonic “Beyond Being” that was super-existentially present as the Ideal), was truly formless and in a way “there” only in the compulsion to emanate diverse existences. Badiou finds the same historical echo in Heidegger’s

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temporal Being that is identical with nothing. In all these instances, I would add to Badiou, one has the logic of a “double shuttle” between two nullities. Heidegger’s ontic, Derrida’s presences, and Deleuze’s territories of mirroring epistemological representation are all less than fully real, indeed somewhat illusory, and are therefore nothing. But behind them lies the real absolute nothing, which is Heidegger’s Being, Derrida’s absence or pure gift, and Deleuze’s virtual or impossible absolute deterritorialization. This absolute nothing is only there at all, only insists in its absoluteness, through its giving rise to the lesser nothings, which are illusions. Badiou is the first Continental philosopher to point out the pretensions of this charade. There is really nothing that is “post metaphysical” going on here; rather, these are all typical examples of metaphysics. As Conor Cunningham has shown in his brilliant book, Genealogy of Nihilism, the same pattern of “double shuttle between two nothings” can be found already somewhat in Plotinus and Avicenna, and then certainly in Spinoza and Hegel.5 Why does this matter, politically? Badiou denounces what he refers to, after Heidegger, as the “folding back” of illusory regimes of stable particular order into the Absolute Being/Nothing or the Virtual, since this amounts, after all, to an ultimate non-valuation of finite specificities and differences. For Badiou, Deleuze wrongly depreciates “formal equilibrium” in art, “amorous consistency” in the existential sphere, and “organization” in the political.6 (In this respect, one can read Deleuze as the thinker of modernism in philosophy, and Badiou as the truly postmodern thinker who allows a plurality of stable truths in a way that encompasses a certain neo-classicism in every realm of culture). In the case of Deleuze, as with Derrida, differentiation that liberates is an insistence, and it is never perfectly accomplished (even if its mode of arrival is more positive and to a degree more positively realized for Deleuze as difference than is the case with Derrida). This means that Deleuze can articulate the ontological conditions for revolution but not to any degree for an achieved, or even constantly arriving, revolution, which would be socialism. One could have an advance by degrees into socialism if Deleuze admitted analogical difference, but where Being is always unmediably and immediately different, then every asserted difference against territory is destined to lapse into territory in turn. Here socialism cannot arrive fully, nor even by degrees. Deleuze, therefore, offers us, as a kind of new Neoplatonic One, the absolute void or virtuality, which tends to fold back into itself all finite regimes of territory or representation, since these regimes are the only actuality of the virtual in its anarchic unfolding, such that the illusion of stable hierarchic distribution (into genera and species), is nevertheless the work—the only realized work—of nonidentical repetition, univocally conceived. But in that case, nothing finite betokens any socialist promise, just as authentic art can only be an operation of violence, cruelty, and disruptive gesture.

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Badiou offers us, instead, a notion of Being not as a forceful “virtual” prior to any logical possibility, but rather as simply the anarchic infinite set of all mathematical possibilities with their endless subsets, overlapping sets and subsets that paradoxically diagonalize out of their containing sets. In none of this, however, does any human promise reside for Badiou. Here again, he challenges all the other Marxisant thinkers: If one takes, for example, Deleuze’s “Virtual” in a materialist sense, then the collapse of differences back into this empty univocal ground, on account of their univocal manifestation of being, amounts only to a recrudescence of vulgar materialism. One gets (as described in A Thousand Plateaus) a purely “diagrammatic” matter without meaning that, as a series of “abstract machines,” is transcendentally prior to both substantive content and semiotic expression, both of which it distributes as sedimented states (the equivalent of the ontologically engendered yet local domains of “transcendental illusion” constituted by “representation” in Difference and Repetition) according to no constraint or logic.7 It is this conception of the hidden urging of abstract machines that encourages Deleuzian-Guattarian fantasies about the emergence of post-human bodies and cyborgs. The question to raise here, is: In what sense are post-human bodies “bodies” if they exceed the psychic (rendering them thereby merely inorganic and inert); and if, conversely, they do not, then how are they post-human, if non-reductive materialism means that we never fully know what a human body can do or how it can develop? To lose the human is here also to lose the body for a subpsychic dimension that can only be either mechanically determined or random, or else (in some fashion) both. This is clearly a “reduced” matter once more, however intoxicating the formulae that seek to express it. It is also not surprising that Deleuze and Guattari celebrate machines, albeit “abstract ones,” reduced to “matter and function” so avidly, for the abstraction does not render the machine less purely material. To the contrary: as in the case of the Cartesian reduction of physical space to geometrical space, the ordinary physical machine without a unifying eidos or directive telos is already an abstract machine just for this reason, transferable as an abstracted idea of a process into indefinitely many physical circumstances with any possible degree of rarefaction, including (for a reductive perspective) processes of information. Thus even if the abstract machines of Deleuze and Guattari are propelled by and sustain mysterious and unCartesian energies, they are still in their conjoined abstraction and lack of integrating form actually typical “purely physical” machines after all. So is not Deleuze in the end, asks Badiou, simply a pre-Socratic cosmologist, and not a philosopher at all? Is not the philosopher rather always a Platonist who wonders how, within and yet beyond the cosmos, which is now for Badiou the futility of infinite abstract meaningless sets, there is also the city, eros, and art, not to mention proliferating realities whose universal

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fields are not mere arbitrary differences always doubling into theatres of representation, but fields at once unpredictably fertile yet continuously recognizable under a consistent and yet not closed formality? At this point, however, all Badiou himself can offer us is a neo-Cartesian or neo-Sartrean contrast between (one should note) a strictly mathematicized material extension, on the one hand, and an unexplained world of subjectivity and seemingly neo-Kantian valuation on the other. It is in this latter realm that the “events” of which I have been speaking all along are, for Badiou, supposed to arise. However, if Deleuze materially reduces meaning in a way that, as we have seen, is dialectically complicit with an idealization of matter, does not Badiou offer us a yet more emphatically idealized matter, in terms of highly abstract mathematical entities lacking even the motion of machines, a matter also without Deleuzian forces and virtual capacity, which then exhibits no appropriate ground for the emergence of the event? It might very well be that Badiou’s event suggests the possibility of a true revolutionary break more than does Deleuze’s difference, since his event is not parasitic upon the infinite set of all sets in the way that Deleuze’s difference is parasitic upon sedimented territory. Badiou’s Avicennian ontology of pure prior possibility, however, leaves the arising of the actual (as an arbitrary instantiation of some possibility or other) more of an unsoundable mystery than Deleuze’s other Avicennian variant of a creative virtuality always seeking to actualize itself. And, within the field of mysteriously actual arising “situations,” is not the further arising of absolutely presuppositionless self-originating events of truth simply mythical? Does it not require Badiou to espouse a kind of triumphalist view of the emergence of new universal reasonings in science that takes no account of the work of historians of science and their exposure of complex hidden continuities and returns to apparently abandoned positions? One must also ask how, for Badiou, absolute truths in science, mathematics, art, ethics, and politics can rest in an (often romanticized) event of subjective historical constitution and yet be absolute and universal. It is not surprising—and indeed wonderfully honest on Badiou’s part—that here he has to have recourse to the notion of grace. How does this recourse work? A truth arises out of an event, it mirrors no preceding reality, since, as Badiou rightly says, the most fundamental truths of art, ethics, political practice, and even of science and mathematics (which are only shown in new practices and technological performances) are new creative manifestations: “corresponding” truths in the sense of mirroring truths, are only secondary, folded-back repetitions of these more primary truths. So if a subjectively arising truth is compelling, is taken as “true,” it has to be regarded like a “gift” that has inexorably taken one over. For this reason, Badiou affirms St.

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Paul’s account of truth as established in the “weakness” of pure subjective witness by assertion. This feature is exactly that which paradoxically renders it universal. A philosophical truth of placing something in its right place in a cosmos can only be particular and empirical after all, and relative to the cosmos, taking no account of the new that arrives through time. Likewise, the legal truths of the Jewish law can only be particular placings within a total regime of legislation, while equally Jewish prophetic “signs” can only be particular placings within an overall framework that is only one, total Jewish specificity, even if this specificity is potentially infinite. By contrast, the new subjective gesture closes the gap between law and life, sign and performance, and steps outside any given total abstract, even if infinite, set of signs or laws (remembering that for a post-Cantorian perspective there can be infinite sets that, as sets, are still finite). One can, however, ask Badiou how an event can bring with it its own grace without reinscribing the principle of Kantian liberal autonomy that he rightly rejects. As Badiou says, to see oneself as primarily a bearer of rights is to overlook and reduce in value one’s given contingency that is not, and never can be, autonomously self-governed but that, rather, implies prior specific membership of the cosmos and the collective human body. Yet if for this reason an event cannot own its own arrival, and, as Badiou declares, can never know its own future capacity, then how can it actively affirm its own self-arising value? That would mean, once again, a contrast between the material unknown potential over against a neo-Kantian autonomous and ideal valuation. Once again, then, one would have replete and categorical ideas, and so a certain measure of idealism. And, once again, the only way to save materialism from idealism is to invoke theology. If the value of the event is not transparent to a subjectivity and owned by it because it generates the event as a self-instance in a Fichtean fashion, then, like the event in its more material aspects, it must arise, must be given, and must even be literally given from an eternal elsewhere, if it is to enshrine eternal value. Badiou needs to incorporate into his materialist Platonism a real affirmation of the Forms, which are, contra his rather dated reading, still present in the later dialogues. Already he allows that Platonism, via the doctrine of recollection, validates time positively, since it is only the arrival of the new in time that permits the recollection of the eternal beyond the cosmic totality. But he needs to realize beyond this that the value of the new event can only be upheld if really and truly one regards it as an arrival from a plenitudinous and not empty eternity. This issue becomes heightened when one takes into account the fact that Badiou already allows that the Christian event is not just one more event, but the event of the first arrival of the logic of all events—that is, universal events—as such. Even though he thinks that this logic first of all arrived in a mythic guise and was expounded in an “anti-philosophic” manner by St.

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Paul, the latter is still taken as diagnosing, with respect to a supposed nonrational truth, the logic of universality that applies also to universal rational truths that only now can arise as events within the space of the event of the emergence of the logic of the universal as such—which is Christianity. Was the first inauthentic mythical mode of the ingress of the universal somehow inevitable? Badiou is unclear. And what precisely distinguishes mythos from logos, anti-philosophy from philosophy? (At this point Badiou also fails to see that because for Plato truth remains enshrined in the Forms, and yet a mediation of the knowledge of the Forms remains something that occurs partially by mythos, that Plato is in his terms as much an anti-philosopher as a philosopher).8 Both, after all, arise from a subjective event, can repeat the founding event nonidentically, and, as to content, are able to abstract from the particular. Perhaps this abstraction is, for Badiou, more perfect in the case of reason; he says explicitly in his Ethics that a rational and ethical practice will not confuse its own inner infinity of possibility with a totalizing logic. Such a logic characteristically pretends to present the “substance” of an accidental biological or cultural situation (as with racist ideologies) rather than treating such a situation as a void—thereby foreclosing the possibility of other revolutionary theories and practices emerging from other singular occurrences. For example, non-Euclidean geometry, abstract art, Lacanian psychoanalysis, and revolutionary politics should all simply lie alongside each other within the polis without claiming a mythical identity with topos or genus. Neither of these modes of distinguishing mythos from logos appears very convincing, however. If, in the first place, reason is more perfectly universalized than religion, then, one must ask, how is this difference measured? If it is by degree of abstraction, then the problem with an absolute degree of abstraction would be that the universal could no longer in any sense be rooted in the contingency of an event. An idea would then fly off like a leaf from its genealogical tree. Alternatively, if the event remains and, along with the event, some degree of contingency, some element of defining the idea with reference to certain initial happenings and commitments, then there is an ineliminable “anti-philosophical” and “religious” element. In the second place, if the guarantee of ethical reasonableness is once more plurality of discourses, then something very akin to postmodernism à la Lyotard has reestablished itself within the heart of Badiou’s thought after all. The fundamental social rules are once again formal, as they concern a respecting of the “rights” of the various discourses and their various exponents (although Badiou does not see the appositeness of the term “rights” here). The latter therefore become again the subjects of rights, despite the fact that Badiou has already explained (earlier in his Ethics) why rights cannot be ontologically or politically primary. As subjects of rights, they are no longer primarily defined by the impact on them of events, and so they must be treat-

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ing the universal practices that they carry forward as fixed sedimented “situations.”9 Once this occurs, it becomes impossible for subjects to question the foundational assumptions of practices, since these always lie either in the passively contingent falling into a habit, which instantiates a set, or else in the active inauguration of a truth. To treat a “situation” as normative means ipso facto that one fails to recognize its contingency. Hence on Badiou’s own logic one cannot simply be resigned to the unmediated plurality of various universal ideas and practices grounded in diverse events. This plurality must itself constitute an ideologically preserved situation or “state of affairs.” In that case, the only alternative must be to recognize that there is some discourse and practice that universally encompasses all universal discourses and so in some way participates in a qualitative and absolute infinite, since it can only be encompassing in a non-totalizing and non-distorting fashion if in some sense it intuits the absolutely infinite set of all subsets, including internally infinite sets. Yet Badiou himself seems to admit that there is a “common” logic to universalism as such, and therefore a meta-universalism. Moreover he implicitly denies that this meta-universalism is merely formally universal, in contrast to the lesser and substantive universalisms, since he affirms that the logic of all universalism also arrived as an event in time— with Christianity. Putting these two counterarguments together, it would seem that Badiou must affirm an overarching universal discourse and practice, which is a development of Christianity. Can this act be a rationalization of Christianity, purging it of mythic and historically specific elements? No, because, as we have seen, if universalism springs from an event, then to lose mythos and history is to lose the event, and so to lose the universal. Therefore, if, as I have argued, the élan of Badiou’s own thinking should force him to acknowledge the givenness of ideas as the arrival in time of a participation in Platonic Forms, then we have now seen why he should also acknowledge the incarnation of the Logos (which bears all those Forms within itself) in time. Given that not only every universal idea arrives as an event, but also that the very idea of universality must first arrive as an event, then materialism requires that this universality was initially material (or incarnate) and remains so in its later transmission and development (the perpetuation of incarnation in a yet more physical repetition, which is transubstantiation and the collectively corporate ecclesia). Badiou’s Cartesian dualism involves elements of materialism and elements of idealism without integration. His duality of sets-plus-situations over against events embodies a duality of matter versus idea; on the other hand, it is equally true that this diagnosis could be inverted—his idea of given material being is wholly abstract because mathematical, while his idea of the universally valued event is wholly and ineffably concrete because it springs entirely ex nihilo. These modes of unmediated duality are

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inevitable within Badiou’s immanentist cosmos, since it involves only a material chaotic aspect and an ideal aspect with no common transcendent source that would permit an integration. His notion of Being as the set of all mathematical possibilities cannot exceed the status of a logical fiction, and assumes without warrant an Avicennian or Scotist ontological priority of the possible over the actual. Primary actuality simply may not be in accordance with either the ultimate logical calculus of possibilities or the accompanying primacy of an undetermined “will” whether blind or conscious. This is the Thomist counter-possibility of the primacy of a (beautiful, reasonable, desirable) actus purus that defeats the supposed reign of possibility (and of logicism-cum-voluntarism) itself. The (arbitrarily) assumed ontological background of pure multiple sets in Badiou ensures that there cannot be any prior ground in these sets for the irruption of universal truths (which, it is important to stress, Badiou really affirms, beyond “postmodernism”). But suppose, instead, events arise somewhat less mysteriously and mushroom-like than he thinks, because something in the hidden but always specifically actual orderings of matter encourages their emergence?

III Could there be, after all, an analogical ordering between (now primarily actual) sets and situations, and then between situations and events? Badiou, interestingly, says that, if he had to choose between Deleuzian univocity and Deleuzian difference, he would choose the latter. Yet he still clings stubbornly to univocity rather than analogy, even though his notion of an open and yet consistent truth process would seem to require an analogy at least internal to the event. What is truly at issue here in postmodern thought as between the univocal and the analogical? The real problem in tackling this issue is that Deleuze never truly considered the claims of analogia entis at all. For Deleuze, Being itself is univocal, while that of which it is said, namely individual beings, is equivocal.10 Analogy simply inverts this schema on Deleuze’s account. Being is equivocal in its non-generic distribution among generic differences. (As Aristotle says, Being cannot be divided like a genus because such a division yields only a being that does not differentiate Being qua Being, e.g., as “tiger” differentiates “animal” qua “animality”). On the other hand, the specific differences of which being is said exist univocally as differences of the same genera in every case. Hence for Deleuze (ultimately after Scotus), analogy must be affirmed only in denial, in order that it may conform to the law of excluded middle: it therefore splits into either equivocity or univocity at different levels. For Deleuze, at the highest level

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of Aristotelian ontology, the distribution of Being among genera is masked in its anarchy and dubbed “analogical” only as the supposed imposition of a “judgement” (grounded in the self-thinking first mover). At a lower level, the parallel ratios between different inclusions of generically diverse species under their respective kinds (like the ratio of oak to plant compared with the ratio of tiger to animal)—or else ratios concerning the relations of individuals to species, or of accidents to substances or of effects to causes—are dubbed “analogical” only in disguise of the pure univocity that pertains to similar formal proportions (the mathematical analogia, for which Aristotle reserved the word). This is the most sense that I can make of Deleuze’s construal of analogy, and while his presentation pays respect to Aristotle, it bears very little relation to any scholastic discussions of the kind to which the theory of univocity was a riposte. However, his double reduction of analogy to the equivocal Being/genera relation on the one hand, and to univocal proportions pertaining to species on the other, suggests a derivation from postmedieval neoscholastic manuals. By contrast, it is now generally admitted by medieval scholars that the mathematical “analogy of proper proportion” was subordinated to the role of “analogy of attribution” in the tradition that passed from Proclus through the Arabs and culminated in the work of Thomas Aquinas.11 Attribution concerns relations of ineffable affinity, especially between effects and causes, that are not available for the scrutiny of comparison. It proposes a real “medium” between identity and difference, and encompasses both levels discussed by Deleuze, without fracturing into either the equivocal or the univocal. This is primarily because, on the view perfected by Aquinas, the supreme source is no longer a supreme “being” like Aristotle’s first cause—in consequence problematically sharing in Being with its effects—but rather is now the infinitive esse, is itself Being as such in its all-inclusive omni-determination as essentia (such that esse and essentia here coincide), and so is itself as source the shared medium for all beings that it generates. This has the immediate consequence that God as esse is directly given to every individual ens, even though genera are given only to individuals by the mediation of species, while the created common, abstracted, and so quasi-generic being (ens commune) that all creatures share as the “existence” that they contingently have, but might not have, is given only to individuals by the mediation of genera and species. Hence Deleuze is wrong to say that only Scotus’s univocal Being (logically common to the infinite God and to finite creatures) relates directly to individual difference: to the contrary, esse in Aquinas relates to difference with equal directness (and is said to be maius intima in individual substances) since it is not ontic and lies above even the contrast of the ontic with the ontological (God must be, he is esse, not a contingent essentia, yet this esse as his essentia is also omni-determined, not existentially empty).

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Since esse involves no intra-ontic difference and only the ontological difference in so far as it necessarily exceeds it (abstracted ens commune is imperfectly ontological in its quasi-generic abstraction), it cannot be in any way mediated in its distribution to differences; rather, this distribution is immediately mediation. In this way the divine distribution of Being “by judgement” (as Deleuze rightly says), extends to species and individuals as well as to genera, in such a fashion that the transcending of hierarchy by the source of pure esse, which is “equally near” to every level of created being, can result, for Thomas Aquinas, in “accidental” features of individuals from a generic and specific perspective assuming priority from an existential one. In this way, within analogia entis, individual difference really could “diagonalize out” of its embedding within a general categorical framework—one could say like a crowned tiger in a fable, whose kingship exceeds in lived significance his bestiality, or Balaam’s talking ass in the Bible, who has become primarily a donkey-who-spoke, not a certain instantiation of donkey. Or, again, like a man become accidentally yet essentially an artist, or a woman an apostle. Or, finally, the person who is deified and raised to the rank of the angels. In this way analogy of attribution involved (beyond Aristotle, who had left obscure the character of distribution between genera and the nature of certain trans-generic processes of cause and effect) no bifurcation between the essential equivocity of the distribution of Being among genera and the essential univocity of the distribution of genera among species. Rather, analogy always implied an analogy of analogies: an obscure kinship (but no measurable proportion) between the analogically judged-to-be-fitting distribution of Being amongst genera, and the equally analogically judgedto-be-fitting distribution of genera to species and of species to individuals. For, since the division of genera is not simply predictable according to a mathesis but species existentially adds something to genus—in such a way, moreover, that there are no rules for determining the last crucial specific difference that fully determines integrity of form and so “gives” being (according to Aquinas)—here also a moment of equivocity is redeemed only by the instance of judgment (distributively by God and perceptively by us) of convenientia. Likewise, analogy reaches down even to the materially individuated thing. Although, in the Aristotelian scheme, the mere negative potential of matter individuates—so (as Deleuze rightly thinks, following Scotus) rendering difference beneath reason and meaning—in Aquinas’s supplementary ontology of esse, as Étienne Gilson realized, the negativity of material determination is converted into a positive instance by virtue of its assumption into the shared esse of the individual substance. Since (one needs to add to Gilson) this is a participation in a hyper-specificity, because infinite esse as such coincides with infinite essentia, material individuation must here be transmuted into an active and determined feature. For this

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reason Aquinas has no need of Scotus’s entirely obscure haeccitas; his position also implies that matter is only a kind of projected shadow of beings differentiated by species and not simply by individual genus like the angels. In this way Aquinas indirectly suggests the most extreme and perfect form of non-reductive materialism: “in itself” matter is nothing; all its positivity is granted by Being and by ideal essence. Hence it is only active and embodied precisely at the point where it is also “formed,” meaningful and sometimes psychic. The point here is that “shape” (eidos) is at once entirely concrete and entirely abstract and ideal. The tree is first inescapably there when it can also already be transplanted, drawn, imagined differently and yet still as “tree,” and so forth. Such constitutive forceful variability is at once the latent negative passive potential of matter and the real existence of the latter only through the active potential of form. The unpredictable yet coherent energy of form as created or actively received (and not as an immanent ideal whose logic or willing trumps the material) casts the shadow of matter as the screen that distinguishes things through exteriority, and reveals the limits of the “so far” and the uncertainty of “what is to come,” whereas angels each occupying a single genus are not exterior to each other in space, nor do their existences unfold in time. Materiality therefore is an effect of space and time, both of which it negatively sustains as the ideally projected “nether-limit” of creative emanation. One can note that eidos as “shape” is very akin to Deleuze’s “diagrammatic” medium of the abstract machines, since it mediates between content and expression: the forma migrates into our mind as species, which is actively transmuted into verbum, and both form and inner word can for Aquinas act as signs (a point greatly elaborated by John of St. Thomas in the seventeenth century). However, in the case of Thomist eidos, there is no duality of the formative process and the outcome of sedimentation, since the two belong in a harmonious analogical series. Because “sedimentation” is here saved and seen as issuing from the first principle (esse ⫽ essentia), difference is more radically affirmed than with Deleuze, since the positing of difference does not immediately unfold into the illusory self-affirming sphere of the Baroque monadic mirror of representation. In the Deleuzian scheme, material content and ideal expression absolutely coincide in the diagrammatic; but as we have seen, this notion at once cancels matter in the mathematical and ensures a reductive materialism such that a material flow reduced to the mathematicizable is the real final principle. By hierarchically subordinating the sedimented as an unfolding lapse, Deleuze downgrades simultaneously the stable form and the real concrete material body. It is the reverse of the situation with the Thomist eidos: here, to the contrary, an interplay between process and fixity also involves some interplay (instead of perfect coincidence) between the ideal and the material,

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since there is a difference between the communicated form (from material substance to material substance, or from material substance to mind) and the materially instantiated form. Nevertheless this interplay is analogical and neither dialectical nor univocal/equivocal (the latter is also, despite Deleuze, unavoidably dialectical). Therefore, there is no necessary lapse or rupture, and the negative reserve of matter appears only when it works with the active reserve of form; inversely, the active reserve of form can “work” only on the mystery of created material resistance, which is never “there” and yet provides all sublunary “thereness”—the absolute ethereality of the absolutely concrete. So we have seen that analogia entis involves a constantly proliferating analogy of analogies reaching down toward a difference that mediates with the universal, unlike the Scotist haeccitas, which is external to universal essence (which in consequence tends to be hypostasized as “formally” distinguishable within the concrete substance), or the Deleuzian singularity whose priority is simultaneously its subordinate downfall into the dizzying abyss of reflection. We have also seen that, at every stage of its operation, analogizing means that proportions that may be abstractly envisioned in terms of patterns of univocal sameness and equivocal difference are more profoundly marked by the mysterious analogical middle between these extremes. This middle holds Being together both horizontally and vertically. Horizontally, diverse things (genera, but also the residue of otherwise equivocal diversity between species and between individuals) hold together in convenientia. Vertically, lower excellencies are included in a more eminent way in higher causes, partially and imperfectly in higher ontic causes, but absolutely and perfectly in the supreme ontological (and para-ontological) cause which is God. However this eminence is not be conceived in the mode of proper proportion as merely an appropriately different (equivocal) excellence (as in “God’s goodness is proportionate to God as our goodness is to us, but God is infinite and so his goodness is unknown”), nor as a maximally “intense” (univocal) degree of excellence (as in “God’s is an infinite degree of a perfection whose essence we grasp etsi Deus non daretur”). Duns Scotus conceived analogy in both these terms at once, so inaugurating its bifurcation that was sustained by most later scholasticism and descends even to Gilles Deleuze. For Aquinas instead, eminence implies a “super-eminence” such that, for example, God’s goodness is “like” the mode of creaturely goodness, and yet also “unlike” this goodness in an unknown manner that nonetheless establishes the very archetype of this excellence (all this being very authentically Platonic). So in ascending the analogical scale of Being, one passes from a known to an ever-more-unknown Good, yet this difference of the unknown Good is not equivocal, since it more and more clearly discloses the nature of the finite good that it surpasses. Yet neither is

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this “shared” goodness univocal, for with this disclosure the distance of the finite from the infinite good is rendered yet more clearly apparent. So in both the horizontal and the vertical instances, one is speaking of an unimaginable, logically impossible (for formal logic) middle between same and different, likeness and unlikeness, where to grow different is to increase in identity, and to increase sharing is to increase hierarchical distance and “external” diversity. (This is why Aquinas stresses that the power of God in granting esse is shown precisely in creaturely independent existence and capacity, including freedom, even though all this is absolutely “determined” by God, and sets up no totally external or autonomous reality in the ontic sense.) Thus analogical ascent guarantees at once deification and yet the persisting good of the creature as creature. Yet Aquinas failed to recognize that the middle of analogy can only be the excluded middle of Aristotle’s logic. One must agree with Scotus’s brilliant demonstration that this is the case, which resulted in a parting of the ways between the Neoplatonized Aristotelianism of analogy and participation on the one hand, and the new, more rationalist/empiricist Aristotelianism strictly following the law of identity on the other. Since Scotus was right, no conventional scholastics were thenceforth really able to preserve Thomas’s legacy. One must look instead to figures more tangentially linked to this legacy, especially Meister Eckhart and Nicholas of Cusa. The latter’s coincidentia oppositorum can surely be read not as the inauguration of dialectics but rather as the attempt to salvage analogy in the face of Scotism and Terminism. An affirmation of the middle as not excluded becomes possible for Nicholas, because he reckons with the participation of the finite ens even as finite (one property of the finite is infinite extendablity or divisbility) in a sharing out even of the infinite itself. This exacerbates a sharing already recognized by Aquinas of the finite ens as finite in esse as infinite (“infinite” is often used by Aquinas to qualify esse, because it is necessary to establish nonrestriction by particular essence and essential omni-determination). Since the sharing of Being involves an infinite/finite proportio, this cannot be thought in terms of identity or difference without placing infinite “alongside” finite in Scotus’s ontotheological fashion. This is clear for Aquinas from the point of view of the infinite: it is not one more thing, so belongs neither inside things nor outside them, since outside is still a relative placing. But Cusa makes it clear from the point of view of the finite also: the finite itself opens onto the infinite, and even a merely endless finite infinite involves a certain presence of the absolutely simple infinite (just as, for Aquinas, esse is maius intima to the thing, and, for Augustine, God is closer to me than I am to myself). Therefore the finite does not relate to the infinite as simply “exterior.” Rather, the infinite, now like esse (beyond Aquinas) shares/does not share itself with the finite, while the finite becomes/does not become the infinite. Same and different here coincide beyond (Hegelian) dialectics, but in accordance with

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analogical descent, ascent, and horizontal affinity—since dialectics is merely, as it were, a formal logic exiled from formality and longing to restore it in a fashion that is indeed “contradictory” and so constitutes the law of a gnostic agon. Deleuze does not really escape this dialectics, because he thinks the infinite/virtual, finite/difference relation according to a Scotist scheme subservient to the excluded middle. From the preceding discussion follows the claim against Deleuze’s and Badiou’s rationalist classicism that they altogether fail to consider the critical romance of Neoplatonic and Christian analogy. Although the latter is indeed a matter of judgment of the Beautiful (but of the Sublime at the same time without distinction), this involves an extra-categorical, suprahierarchical, and extralegal distribution that is entirely prior to the representation of any fixed order of essences. In this respect it is important to point out that Olivier Boulnois has, in effect, shown that Deleuze’s association of analogy with representation is historically wrong: to the contrary, univocity and representation sprang up together (in a line extending from Avicenna through Roger Bacon and other often Franciscan scholastics to Scotus) because Being reduced to bare abstract existentiality (the minimum of conceivability as “a possible existence,” according to the law of excluded middle) is also Being reduced to what our mind can represent to itself. Univocal Being is mirrored Being: so it is determined by the gaze, and not by its own prior mysterious distribution. Indeed the anarchic distribution into differences unmediated by the beauty of convenientia is simply the only distribution that cold logical reason can represent to itself. If Deleuze’s philosophy is not merely a creative elaboration of his taste, then it is a gigantic claim to represent reality; if it is merely a matter of taste, then his taste is after all for representation. Nor does Deleuze really get rid of the represented hierarchies of genus and difference within his system. As we have seen, he recognizes that any order (theoretical or practical, prehuman or human) that is not impossibly vertiginous has to impose such orderings, which, while they are, as it were, ontologically invalid, are also ontologically inevitable. (The refusal of representation by Deleuze is not the refusal of a false epistemology, but of the ultimacy of an ontological sphere within which alone “humanity,” for him a spectral phenomenon, arises.) Deleuzian univocity, therefore, spells out the always somewhat futile and not finally winnable war of sheer difference (without real constitutive relation) with temporarily stable hierarchies. Thomist analogy (revised in the Cusan direction) implies, rather, that there can be analogical continuity between the “sameness” of given hierarchy, and the constant temporal intrusion of difference. In social terms, this means that unavoidable hierarchies of value and command (for collective projects of thought and action) can be reduced to the educative and self-dissolving purpose (beyond the collectivist sacrifice of individuals to the social totality and the social fu-

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ture, which leaves hierarchies of command permanently intact) of allowing “pupils” to exceed “teachers,” and so new differences to emerge and truly to flourish in webs of harmonious relation to other emergent singularities.12 So, in reality, Aquinas’s analogy concerns some mediating principle that is at once like and unlike, yet with no dialectical tension nor resulting shuttle between these two poles that results from a never really resolved contradiction. Analogy does indeed offer mediation, or what William Desmond calls “the Between,” whereas in Hegel there is, after all, no mediation, but only an unresolved contradiction that still negatively assumes the sway of identity— which is why dialectics is already the doctrine of alienated and unredeemable differences, while, inversely, differential philosophy remains a dialectical shuttle between univocal absent source and differential manifestation. Between Hegel, Heidegger, and Deleuze, the intellectual differences are all trivial. They all at bottom refuse or fail to consider the true mediation that is analogy. If reality is analogical, then it is possible that it “holds together” through a concealed multiple affinity in an ineffable fashion, as I have endeavored to suggest. Ineffablity need not denote idealism; it is simply unavoidable, since dialectics and univocalist differential philosophy offer their own ineffability, which is the invisible absence of mediation between void source and differential emergence. Since this absence is invisible, they can only assume, beyond reason, the empty sublimity of source manifest only in the abject differential remainder. Suppose, however, that one instead assumes that which we sometimes appear to see, namely, the sublime yet also beautiful proportion of the invisible obscurely manifest in the visible? This constitutes vertical analogy that grounds a horizontal affinity between the material and the ideal. Then one might allow that there could be a passage from given state to event that involved continuity as well as rupture, since one would no longer enclose the event in a replete ideality of utter mythical uniqueness. Then, too, it would not be necessary to erect a duality between the culture of the event of socialism on the one hand and the mere “indifferences” of various human cultures receiving socialism and regarded as mere arbitrary “states” on the other. In this way, one would not need to make so abrupt a choice between socialist universal commitment and the valuing of local cultural identity. One could thereby help to avert the danger of revolutionary terror. The analogous ontological perspective that thinks “the between” allows the different cultural and religions incarnations themselves to help constitute and reconstitute universality.

IV The same lack of mediating analogy colors Badiou and Žižek’s account of the emergence of a universal and redeemed subjectivity. They both rightly

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insist that it was St. Paul who first proclaimed the logic of such a subjectivity. St. Paul insisted that the law—that is to say, any abstract commanding imposition from a merely general state of affairs—elicits my willed assent yet gives rise also to a fantastic, perverse desire to do what the law forbids. Since the law sets itself up reactively, it assumes sin and death as positive forces possessed of real activity and real subjective appeal. Thus, in denying that the law is the real source of the Good or of liberation, St. Paul, as Badiou notes, said all and more than Nietzsche managed to say. The law thereby institutes a divided subjectivity. As Žižek, following Lacan, rightly argues, the way to overcome such a division cannot be the “release” of my subconscious perverse fantasies, as a certain crude Freudianism would suppose, but rather must be the sacrifice of my self-centered fantasies that, if it be complete, will entail also a liberation from the law that alone sustains them. Both Žižek and Badiou recognize that St. Paul was the first to propose a step beyond a divided subjectivity in thrall at once to the law and, by the same token, its own obsessions and illusions. Nevertheless, St. Paul was much more radical than Lacan, Badiou, and Žižek. For Žižek in particular, in accordance with orthodox Lacanianism, desire is sustained at all only in response to the law’s imposition, and desire is, accordingly, always of an impossible object: the fantasized shadow-side of the impossible “real” that every law as a symbolic order must assume as its fictional reference point of absolute value—just as the laws of the United Kingdom sustain a “reality” that no one can define and is, in a sense, not really there. Although Žižek rightly denies that Paul’s agape excludes eros, this seems to mean for him something just like Deleuze’s active force of selfexpression, to which Badiou, too, tends to reduce agape. The consequences are somewhat austere, however. First of all, in this perspective, we cannot really ever finally rid ourselves of illusory desire, since every symbolic order is akin to Paul’s legal order, and yet symbolic order is constitutive of humanity as such. So are we really so far removed from Deleuze’s ontological impossibilism after all? On this ontological basis one can imagine the gesture of revolution, but really no stable progress toward socialism, much less its stable achievement. In the second place, the subject who has gone beyond both law and desire is only an austere disillusioned subject, able to share with others only a tragic consciousness of what has been transcended. This situation is compounded, not really altered, if one follows, as Žižek sometimes does in The Fragile Absolute (116–17), the more radical Lacan of Seminar XX, for whom there is no longer any “one” simple instituted symbolic order, but rather the ultimate reference of the latter to the impossible “real” is echoed in its multiple fragmentation. In consequence there are now manifold incompatible regimes of fostered desire, such that one “authority” is but a pathological “symptom” for another authority and vice versa (for example

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the incommensurability between the laws of male and female sexuality). This ensures that, in a sense, there are “only symptoms” and no laws at all. But where there is no single identifiable abstract source and system of law, then there is equally no possibility of resignation to both its sway and to its instigation of a desire that is “healthily” exercised when one knows (for Lacan) that it cannot really be fulfilled. Here one can no longer abandon oneself to the law in order to outwit it by denying the constitutive gap between legal order and the reluctant subject of always somewhat illegal desire, which alone allows legality to function. Instead, the symptomatic obsession, which is taken in earlier Lacan to indicate a disguised seduction of the subject by law into fantasizing a finite source of fulfillment, is now seen as the original instigation of desire in terms of a gap that is opened up by the fetishized object or theme, between itself and itself; like the classical “fetish” of anthropologists, it at once repels and entices. It becomes in this way its own hollowed-out void, just as it plays at once the role of law and irregular exception to the law. No longer, then, can one safely be rid of symptoms without losing even the sublime void of the real that for the earlier, as it were, “dialectically Buddhist” Lacan saved desire even in the recognition of its impossibility. Žižek sees the newer scheme as more “Christian” according to the terms of a Hegelian death of God theology: The abject finite object of desire alone enshrines the sublime void (as God the Father is dead in Christ’s dead body), and so desire cannot be saved by recognizing its illusory instance. It is its illusory instance: sublimity resides only in the once discarded sign of sublimity—in shit, the sublime object. Yet this is in reality only an intensification of the older Lacanian scheme. In clinging onto the multiple pathological symptoms that are now seen as original and inescapable, we still attain the void, and with the crucified God-Man can “begin again” without illusion as to the loss of illusions. Still, more than before, we receive the Lacanian cure of not being cured. All of this is still very Greek, not at all Pauline. Žižek’s tragic subject, resigned to the supposed impossibility of sexual relationship and satisfied desire, albeit in the midst of his continuing but chastened obsessions, simply commits an utterly abandoned ego to collectively revolutionary seriousness. Such a Lacanian revolutionary subject will be committed if necessary to the violent overcoming of all still confined under the law or multiple laws/symptoms of desiring—but to what end, and so, with what justification? Not to any possibility of just laws and just desiring, and so not to any real material incarnation of socialism, given that laws and desiring are constitutive of our humanity as such. Hence the problem is not that the new Lacanian-Leninist revolutionary may will dubious means toward a just end, but rather that she can conceive no innately just end. What such revolutionaries share amongst themselves can only be the replete

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idea of a surmounting of inevitable and ultimately materially grounded processes. This follows, since for Žižek (unlike Badiou) the human rupture that invokes “the real” (which I am diagnosing as an “ideal” moment) and takes us beyond the symbolic (which is a materially grounded process) is nonetheless a constitutive fissure in a Heideggerean fashion—a fissure within Being and so within materiality as such. This fissure is the authentic irruption of pure Being in its ontological nullity; however, by token of this very authenticity, it is destined to lapse back into the inauthenticity of the usual symbolic manifestation of materiality in all concrete appearances. Therefore the violence that such revolutionaries may visit upon the unredeemed is not the negative immanence of utopia but the usual anger of ideas against recalcitrant bodies. In this way, Žižek sustains the nihilism that Lenin, in a very Russian fashion, tended to add to Marxism.13 He is more of a mystical nihilist than Badiou, because he sustains the Heideggerean idea of a “folding” of beings back into Being and the concomitant idea that Being as such suffers a fall and dissolution in the human realm of ontic regimes of meaning that are constituted by forgetfulness of Being. This is actually worse than Badiou’s relapse into immanent pagan dualism. For what one has here is, despite everything, the purest gnosticism. The heart of gnostic tradition lies not in dualism alone, but rather in a negatively mediated dualism as enshrined in the Valentinian and then Behmenist idea that there is a kind of fall of an aspect of the absolute (or a reality just beneath it) or even of the absolute itself (in Jacob Boehme’s case) into finite evil: a negative moment that is later recuperated. Hegel’s thought (which, as Cyril O’Regan has firmly established, is most fundamentally grounded in the influence of Boehme) tends to see the recuperation as nonetheless also the permanent perpetuation of the original constitutive loss of the infinite in the finite, by virtue of the dialectical identity of the void of identity with the rival void of the nonidentical.14 Heidegger offers merely a variant on this gnostic idealism mutated into nihilism. Such a perspective tends to eternalize and positivize evil and to make agon an ultimate and not contingent reality. It ontologises violence and is one version of the supreme secular gesture: as the great twentieth-century Russian thinkers Pavel Florensky and Sergei Bulgakov argued, in a cosmos without ultimate meaning or order, the consequently manifest violence of the arbitrary will itself be sacralized. Nazism was but the most extreme manifestation of this implacable logic, which Leninism did not altogether escape.15 But it is utterly inimical to a viable socialism and cannot sustain more than a nihilist revolution. Socialism crucially recognizes, of course, that apparent human histories of peace are really histories of hidden conflict and opposition. It should not, however, ontologize this prevailing circumstance, but instead insist on its contingency. Otherwise socialism loses all

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hope—which is possible for socialism only if the cosmos is secretly such as to be hospitable to human harmony and to humanity living in harmony with the cosmos—that is to say, to (non-dialectically) mediated differences. A hospitable cosmos of this kind must be an analogical cosmos, and, for reasons that we have seen, an analogical cosmos is a created cosmos—a cosmos that proceeds from a simple and perfect donating source, not a first principle of absence agonistically ruptured within itself. It follows, then, if we are hoping, not just for revolution or gradual transformation but for a material incarnation of socialist practice, that we become less austere subjects than the Lacanian ones who have advanced from the shoals of desire to the shore of a kind of disillusioned love. Such subjects, in leaving behind their false, fascinated souls, have also left behind their bodies. But we should not despair: St. Paul, unlike Lacan, does not deal in any duality of desire and love, for it is clear that for him agape is also a longing both for other people (Romans 1: 11–12) and for the final vision of God (1 Cor. 13:12; Romans 8:23). Even within the fulfillment of this vision, desire for St. Paul remains and is not cancelled, since we are told that agape abides even in the beatific vision (1 Cor. 13: 8–13). This must mean agape as desire, and not as self-giving charity, since in the vision of God there can be no further need of the latter (which is probably why, for Paul, one can give away everything to others, including one’s life, and still lack agape—as desire and reciprocity [Romans 13:3]). This longing for others and for God is itself grounded in the groaning travail and longing of the material world, so that agape fulfills and does not deny the promptings of the body (Romans 8:22–23). And why should there not be this other sort of desire, not elicited in response to the ban of the law? Why should not desire be incited by the distance of the other that sustains this otherness as the very precondition of their presence to us? In that case, there must always be a surplus to presence within presence to sustain it as over against us. Certainly, we have (in Lacanian terms) to imagine this distance, and, in doing so, we are caught up in the symbolic webs within which alone the other can appear to us, but just what is it that causes us to assume that the unreachable obstacle of desire is therefore not real in an emphatic, fully ontological and not Lacanian sense? And how can we know that this real and inaccessible object is not beautifully mediated to us through all our fetishistic substitutions for it, including the confronted and reintegrated abject object, whose initial exclusion is always the sign of a subordination of living desire to abstracted legal command? Surely no psychoanalytic “evidence” could ever tell us this, since assertions concerning the unreachable—even that it cannot be reached, and cannot be mediated—can only be dogmatic and not empirical. Rather, one can suggest here that Lacan was already governed by a Kojevian (and substantively correct) nihilistic reading of Hegel, according to which, as Žižek puts it, the only

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true desire that remains to us is desire of the void. But this is, after all, only one theology. Another interpretation of the constitutive excess and inexhaustibility of desire remains possible—another, alternative theology, of a more orthodox Catholic kind. According to such a theology, in loving others, we do indeed love them as ciphers, loving them for the signs they offer of an inaccessible true object of desire. However, if this true object is God, then, in remotely loving God, we do also love finite others in due measure (as both Aquinas and Scotus insisted) and more properly as themselves in pointing beyond themselves. All this allows more validity to certain Levinasian insights than Badiou admits. What is involved here, however, is somewhat more than a Levinasian non-desiring love for the infinite in the other, without analogical mediation. One has here instead a desiring love that ineffably blends us with the other in so far as we come to realize how both our imagining desire and the other’s symbolic presence blend beautifully as a remote participation in a real plenitudinous infinite. Then, after all, masculine and feminine diverse desires obscurely meet, and there can truly be “sexual relationship.” Then, after all, the outrunning of the law by agape does not merely hypostasize the unlimited beyond taboos, but constantly enacts what Paul describes as the law of love that reaffirms the Jewish law in a new mode, a continuing reinscribing and interlinking of temporal and bodily limits (but according to no new fixed and general rules). Then, after all, there could be socialist subjects not abandoning their material desiring specifics for human political universality but realizing that universality analogically and so harmoniously in those very domestic specifics themselves. Equality with difference. Equality with liberty and fraternity, which, as Krzysztof Kieslowski’s great film Blue sings out in its beginning and end, is possible to envisage only through the ontological vision opened up by faith, hope, and charity.

NOTES This chapter was previously published in John Milbank, “Materialism and Transcendence,” in Theology and the Political, Creston Davis, John Milbank, Slavoj Zizek, eds., 393–427. Copyright 2005, Duke University Press. All rights reserved. Used by permission of the publisher. 1. Giambattista Vico, On the Most Ancient Wisdom of the Italians, trans. L.M. Palmer (Ithaca, N.Y.: Cornell University Press, 1988), chapter one, I–II, 45–53; Sergei Bulgakov, Philosophy of Economy, trans. Catherine Evtuhov (New Haven, Conn.: Yale University Press, 2000). 2. Antoine Côté, “Infini,” in Jean-Yves Lacoste, ed. Dictionnaire Critique de Théologie (Paris: Presses Universitaires de France, 1998); Amos Funkenstein, Theology and the Scientific Imagination (Princeton, N.J.: Princeton University Press, 1996).

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3. Alain Badiou, St Paul ou La Naissance de l’Universalisme (Paris: Presses Universitaires de France, 1999), and Ethics (London: Verso, 2001); Slavoj Žižek, The Fragile Absolute (London: Routledge, 2001), and On Belief (London: Routledge 2001). 4. Alexis de Tocqueville, Democracy in America, ed. and trans. by Harvey Claflin Mansfield and Delba Winthrop (Princeton, N.J.: Princeton University Press, 2000). 5. Conor Cunningham, A Genealogy of Nihilism: Philosophies of Nothing and the Difference of Theology (London: Routledge, 2002). 6. Alain Badiou, Deleuze: The Clamor of Being (Minneapolis: Minnesota University Press, 2001), esp. 99. 7. Gilles Deleuze and Felix Guattari, A Thousand Plateaus (London: Athlone, 1988), 141–42; Gilles Deleuze, Difference and Repetition (London: Athlone, 1968), 367, 272. 8. Catherine Pickstock, A Short Guide to Plato (New York: Oxford University Press, 2006). 9. I here use Badiou’s term for a practice grounded only in the accidental realization of a particular possible ontological set—for example feudalism or capitalism—and not in an eventual irruption of a genuine universal “truth”; a truth can also lapse back into the condition of a situation, as when representational and perspectival art is seen as defining art as such. 10. Deleuze, Difference and Repetition, esp. 33–39, 137–38, 302–304. 11. For this and for most of the remarks below concerning Aquinas, see John Milbank and Catherine Pickstock, Truth in Aquinas (London: Routledge, 2001). 12. For the above, see Olivier Boulnois, Être et Representation (Paris: Presses Universitaires de France, 1999); William Desmond, Being and the Between (Albany: SUNY Press, 1998). 13. Michael Allen Gillespie, Nihilism Before Nietzsche (Chicago: Chicago University Press, 1996), 167. 14. Cyril O’Regan, The Heterodox Hegel (Albany, N.Y.: SUNY Press, 2001) and Gnostic Return in Modernity (Albany, N.Y.: SUNY Press, 2001). 15. See for example, Rowan Williams, Sergei Bulgakov: Towards a Russian Political Theology (Edinburgh, Scotland: T. and T. Clark, 1999), 233.

IV ASIAN PERSPECTIVES

10 A Jewish and Democratic State: A Normative Perspective Aviezer Ravitzky

In 1992, Israel’s Kenesset (Parliament) promulgated two Basic Laws stipulating the character of the State of Israel to be that of a “Jewish and democratic state.” The dual characterization poses a series of questions in the cultural, theological, legal, social, and political spheres. This chapter will examine the tensions lurking between the terms “Jewish” and “democratic,” and suggest opportunities for bridging the gap between the two. The term “Jewish State” can be understood in a variety of ways. To speak of the “Jewishness” of the state in a demographic sense raises no questions at all. Neither is any particular tension created if the term “Jewish State” is interpreted according to the European model of a nation-state: a democratic state may be founded on historical memory and collective symbols that foster the culture and language of the majority while enabling other memories and cultures to flourish as well. Nor is there necessarily any contradiction between “a state of all its citizens” and “the Jewish State.” In principle, at least, the state can be a state of all of its citizens (including non-Jewish Israelis) without discrimination, yet not only as the state of its citizens but also as the state of the entire Jewish People (including non-Israeli Jews). The possible tensions, then, are not generated by the encounter between a Jewish national identity and a democratic system of government. Yet such tensions are definitely likely to arise between Judaism—as a dynamic tradition of norms, demands, and sources—and democracy—as a dynamic system of principles and fundamental values. This chapter hones in on this question and on that possible encounter. Various Israeli authors have sought to dismiss a priori the pertinence of this question. In other words, they seek to merge the two systems completely. Yet, upon close scrutiny of their writings, we are forced to conclude 255

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that what they have actually done is to subsume one of the systems under the other by negating the independent status of one of the two. Some discard Judaism for democracy, and some democracy for Judaism. The former maintain that the “Jewish” values the Israeli legislator had in mind were specifically those values that have long since been universally accepted and have become the inalienable property of democratic Western culture. The latter argue that the “democratic” values referred to by the Israeli legislator are specifically those values that developed within Jewish communities in times gone by, becoming an integral part of the Jewish sources. From my perspective, neither of the above positions does justice to the complexity of the issue. Both of them abandon the original duality, adhering to only one of the components of the dilemma. This chapter will therefore seek to chart a different course. It will begin with the premise that while tensions do indeed exist between the two traditions—their fusion is not a bygone conclusion—it should nevertheless be possible to find ways to propose a course of action that will neutralize or at least lessen the risk of collision and social combustion. Let us begin with the term “democratic state.” “Democracy” is widely understood to have two meanings. In one context it may signify a particular system of government, a political order with accepted methods of deciding societal disputes. In another context, however, it may denote the totality of norms and values that constitute the underpinnings of the democratic system in modern Western thought, or even in liberal Western thought. The two facets are often discussed simultaneously, but for our purposes it is worth distinguishing between the two, even if only on the methodological level. Strict differentiation should be made between agreement (or lack of agreement) on the political rules of the game and agreement (or lack of it) on values and creeds. The first stage is to examine Israeli “democracy” in the narrowest sense of the term, not as the quintessential embodiment of those articulated fundamental values predominant in modern liberal society, but as a procedural method for judging between conflicting and competing basic values. Distinct values of this sort abound among the Israeli public today, and at times appear locked in a struggle to the bitter end. The state of the Jews no longer represents a clear verdict in the controversy over the desirable form of Judaism or the desirable form of humanism, as many of its founders projected it would. The state itself has recently become the arena for the debate. Such a debate can be held either through guns and swords, or through words and ballot boxes, and whoever chooses to maintain a “democratic” state has opted for the second route. In the narrow sense of the term, then, a democratic state is a state in which the contest between competing values and interests is determined democratically.1 In the Jewish tradition there is an accepted distinction between halakhah and aggadah. The halakhah represents the law, the norms and the most

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seemly lifestyles for the individual and society. In contrast, the aggadah represents the cultural platform, the spirit and the “story” underlying the practical norms. Using these terms, it is the halakhah of democracy that should be stressed first, not its aggadah or theology. While admittedly such a separation entails serious difficulties, its possibilities should nevertheless be fully exhausted. What establishes democracy are not necessarily Lockean notions of toleration for others, but an earlier sense rooted in the idea that governing arrangements must obtain the consent of the people. Locke and his followers have certainly made a considerable philosophic effort to ground tolerance in immanent values. Despite this line of inquiry, however, the first and, in my view, decisive, argument in praise of tolerance was constructed on a different plane entirely. It responds to the following question: Why should I be tolerant? If indeed your words represent evil and falsehood in my eyes (for otherwise I would bear them with indifference, and no tolerance would be required), what incentive do I have to brook such evil? Why should I countenance the dissemination of falsehood?2 In effect, I am obliged to do just that, because the means that would be required to eradicate the (pernicious, in my view) creed of the other, or the very presence of the other, would perpetrate a far greater evil than that I originally sought to abolish. The price of intolerance—persecution and pain, the negation of freedom, suffering, and death—is too heavy to bear, far heavier than the price exacted by tolerance itself.3 Is there any need to emphasize that the same holds true for the evil deriving from totalitarian regimes and the damage inhering in nondemocratic methods of choice? Take a parallel example from Jewish culture. At the end of the nineteenth century, Rabbi N. Z. Y. Berlin (the Netziv), the rabbi of Volozhen, the central yeshiva of Eastern Europe, advanced a similar argument concerning the most desirable type of political regime. The Netziv was troubled by the following question: Is it conceivable that there could be a religious commandment that would require the public to live according to a specific type of political regime (such as monarchy)? He replied in the negative. According to his conviction, the very concept of commandment in this sphere would spawn an inner contradiction. For according to traditional Jewish law, a religious obligation that jeopardizes life is automatically void (aside from the three severe prohibitions of bloodshed, incest, and idolatry). A commandment of this type, then, would necessarily be waived in order not to endanger the public as a whole. For surely, argues the Netziv, the question of the most desirable regime is by its very nature a matter of public safety, life, and death: If the polity does not consent to the political system or harbors an aversion to the sovereign, this poses a continual risk to social harmony and individual security. Accordingly, if there were a binding commandment regarding the proper form of government,

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it would be void at any given moment due to the overriding obligation to preserve life. In the Netziv’s words: The government of a state varies according to whether it is governed by the monarch’s will or by the will of the people and its representatives. There are societies that will not suffer a monarchy, and there are societies that without a king would be like a ship without a captain. Consequently, this matter cannot be settled by fiat through a positive commandment, for anything pertaining to the government of the people as a whole is potentially life-threatening, and thus waives the force of a positive commandment. Therefore it is not possible to issue an unequivocal command to appoint a king so long as the populace has not agreed to take on the yoke of a king.4

What does this resemble? We are supposed to obey traffic laws. Yet when an ambulance sounds its siren, or when we are faced with a car bomb, a number of traffic laws are momentarily suspended. If, then, such ambulances or car bombs surrounded us habitually, conventional traffic laws would lose all force. Furthermore, the very concept of law would be subverted. According to the Netziv of Volozhen, the same holds true regarding the political system. Governing arrangements must perforce obtain a people’s consent in advance, due not to the indispensability of liberty but to the dictates of life (“And you shall live by them!” Lev. 18:5). In this sense, then, significant weight should be ascribed to democratic processes, to the very fact of social consensus concerning procedures for deciding between conflicting needs and contradictory values. This must necessarily precede an in-depth discussion of the status of democratic principles and values. True, democracy cannot be reduced to majority rule; it is also required to safeguard minority and individual rights, and it is impossible to evade a substantive ethical debate on this plane. True, I myself wish to live in a society that adheres not only to a democratic structure but to the humanistic values that underlie it as well. However, despite all this, such requirements should not be rendered a sine qua non for acknowledging a person’s allegiance to democracy. We must not eject from the democratic domain those who abide by it merely because it guarantees fair social arrangements and a modicum of well-being, or even those who adhere to it solely for fear of the heavy price the alternative, totalitarian system would exact. And it is even more imperative to recognize the existence of democratic men and women who are not necessarily liberals.5 So much for a “democratic” state. What about a “Jewish” one? Here a different kind of delineation of terms is required, in light of the simple fact that the Jewish People has not had political sovereignty for the past nineteen hundred years, and most of the legal and theoretical works were composed in the absence of Jewish sovereignty or a living, dynamic example of a Jewish regime.

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In fact, Jewish political thought did not cease developing during the medieval period; it even generated a number of interesting models on the question of the relationship between religion and state.6 Despite exile from land and kingdom, despite the passage of time since the last independent Jewish regime, the foreign kingdoms in which Jews lived furnished them with a sort of live political laboratory. These regimes also enabled no small number of Jews to experience alternate forms of government firsthand. Yet this was not the case with regard to the internal Jewish experience. Exilic life did not foster a creative judicial dynamic on questions of state and regime. It did not generate ongoing problems and solutions in the field and did not oblige rabbinic scholars to provide immediate normative answers. Thus no extensive responsa literature was produced in the political domain, as it had been with regard to other legal subjects. To illustrate: suppose, for the sake of argument, that it was not the institution of the Jewish state that had ceased to exist for so many generations, but the institution of the Jewish family, and that consequently no concrete discussions were held on matters of personal status, marriage, and divorce. No questions were asked and no practical directives developed. Then suddenly, many generations later, the Jews decide to reestablish the institution of the family. They would naturally turn to the scholars amongst themselves and ask about the desirable pattern for a family. What would the outstanding Torah sages recommend? Isn’t it reasonable to assume that they would urge them to adopt their forefathers’ ways by setting up a polygamous Jewish family, if not after the fashion of King Solomon, at least after that of the patriarch Jacob? Might they not also be permitted to hold numerous slaves, as befit a respectable family in ancient times? And even if the sages refrained from going that far, would they really have been confident enough to propose daring halakhic solutions for abandoned wives or know how to resolve legal questions in the event of the separation or conversion of one member of a couple, or any of a variety of other legal matters regarding family life that arose over the course of the generations? The Jewish People was never exiled from the institution of the family, yet it endured a lengthy exile from the institution of the state, and consequently also from the creative halakhic process required to address this realm. Even less could any such activity transpire concerning the particular question of a democratic regime, until recent generations. Of course, many communities had already adopted significant democratic practices in the Middle Ages. Nevertheless the main idea is still missing, for two principal reasons. First, these democratic procedures were all practiced within the context of a Jewish community rather than a Jewish nation. They existed within a framework of cultural autonomy, not political sovereignty; they were characteristic of a tolerated minority, not of a majority that enjoys the upper hand. And most of the questions that arise today about the desirable constitution of a

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Jewish and democratic state stem precisely from the new circumstance of being a sovereign nation rather than an autonomous minority community. This is the case with regard to questions concerning the system of government, war and peace, territorial control, national minorities, international contacts, and so on and so forth. With regard to all of these issues, the Jewish People is suddenly obliged to overcome a backlog generated by nineteen hundred years of political exile. Thus whoever seeks a solution drawn only from within the classic texts consigns himself in advance to a fundamentalist position, almost like the imaginary family depicted above that would take on a multiplicity of wives and slaves were it not for the halakhic activity that had been conducted surrounding these questions over the generations. Second, a further difficulty obstructing every attempt to apply the classic texts directly to current reality derives from the modern phenomenon of secularism. As noted, democratic phenomena have existed in Jewish communities since the tenth century. Yet just as those democratic processes developed without benefit of Jewish political sovereignty, they also developed without the modern phenomenon of Jewish secularism. And from the perspective of the world of Jewish religious law, this is a crucial distinction. For one could assume that the public officials of those distant times were all observant Jews, believers and the sons of believers. Accordingly, their leadership was deemed legitimate from the religious perspective, and their judgments corresponded to Torah law. Yet now that this societal reality has changed entirely, the question automatically arises whether the religious tradition will deign to recognize contemporary Jewish society as the legitimate heir of the medieval kahal (community), and what democratic prerogatives it is willing to confide to this society’s offspring. Significantly, both the Bible and the rabbinic corpus emphasize the fact that in ancient times Israel once had a monarchic regime that did not recognize the authority of the Torah. According to Talmudic law, the real “kings of Israel” (in contradistinction to the ideal “kings of the House of David”) are not judged by the law and do not judge according to the law.7 Maimonides subsequently explained this as follows: “For they are not subject to Torah law, lest mishap ensue,” “For they are haughty at heart, and the religion would be injured by it.”8 While Maimonides still held that the sovereignty of such kings should be respected, he prescribed a clear separation between the sphere of their political rule and the juridical structure of religious law. In other words, there is a Jewish historical precedent for democratic processes in an exilic community. Similarly, there is a Hebraic historical precedent for a monarchic regime that does not defer to religious precepts. Yet there is no direct foothold in the classic texts for the new admixture of democracy with sovereignty, or democracy with secularism. This conundrum calls for creative halakhic activity and a daring intellectual extrapolation of concepts from one field for use in another.

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From the standpoint of the religious tradition, this Jewish State is an extraordinary historical phenomenon, never before envisioned in Jewish literature, whether legal, philosophic, mystical, or messianic. The revival of such a state took the sources by surprise, from several points of view. We have here: a) Jewish political independence, b) in the heart of the Holy Land, c) prior to messianic times, d) under the direction of irreligious Jews. I am not aware of a single Jewish source that foresaw this surprising event, in all four of its components.9 The surprise is further heightened by the fact that this state is conducted like e) a modern national state, and f) adheres to a democratic system of government. Although allusions to several of these elements figure in some of the classic sources, their common conjunction in a single historical occurrence was never anticipated. Yet the very exceptionality of the state affords numerous opportunities and allows for a high degree of flexibility in interpretation. It would seem that precisely because of the special and unprecedented nature of this Jewish State, there are no hard and fast rules concerning its course and customs. It is no accident, for instance, that the last chief rabbi of Tel Aviv, Rabbi Haim David ha-Levi, was wont to stress again and again that the Torah does not specify the Jewish political regime of choice, leaving the issue deliberately obscure. For, writes Rabbi ha-Levi, It is the nature of these areas of life that they are disposed to change from time to time, while the Divine Law is eternal. It therefore deliberately refrains from establishing clear and definite directives in these areas. Moreover, the Torah did not wish to compel the people to adopt a particular form of government in the secular sphere of life, leaving the choice in these areas to the people’s free will. [Accordingly, t]his is the greatness of our holy Torah, that it lacks a clear and defined political or economic system!10

It seems highly doubtful that Rabbi ha-Levi would have said such things in the Middle Ages or at the outset of the modern era. Yet he had no compunctions about saying them within the dynamic reality of the new Jewish State. To my way of thinking, this boldness reflects possible openings and potential flexibility with regard to the “Jewish” aspect of “Jewish and democratic.” This proposition holds true even when we interpret the “Jewish” component in the obligatory religious context of the Jewish tradition as well as in the national secular one. I do not share the argument that the primary problem in the question of Judaism and democracy is the contradiction between the authority of man (in democracy) and the authority of God (in the religious perspective). From the religious perspective, true supreme metaphysical authority belongs to God. Yet it is this very perspective that distinguishes between metaphysical authority and political authority. It teaches that the divine authority has ceded political authority to human beings. To restate: the

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fundamental problem here is not the theological problem of the sovereignty of God versus the sovereignty of man, but the halakhic and political problem of what the desirable character is of human rule on earth. Up to this point I have suggested two possible courses of action, involving both sides of the encounter between a “Jewish state” and a “democratic” one, in order to lessen or even neutralize the tension between the two. I will now offer a third possible course. It is my impression that two parallel processes taking place within Israeli society in recent years have greatly exacerbated the tension. One process manifests itself primarily within religious society, in the form of the “halakhization” of life and culture, while the other process manifests itself among Israeli society as a whole, in the form of the extreme “legalization” of life and culture. Whichever way one turns, the society is focusing more and more on the letter of the law, whether religious or civil; whichever way one turns, ethics are reduced to precepts and ordinances, as if the “good” could be subsumed under the “legal” and the “bad” under the “illegal.” The power of the formal decision supersedes the power of openness and flexibility. There is an urgent need to mitigate these parallel trends, in order to avert a possible collision between the two systems. On the one hand, among the Orthodox religious public the equation Torah ⫽ halakhah (or more precisely, the even more circumscribed equation Torah ⫽ an adjudicated religious law) has become more and more predominant. As if Judaism is no longer the province of aggadah, or philosophy; as if it does not comprehend a multiplicity of opinions and acknowledge gray areas; as if it is embodied only in official verdicts and cutand-dried instructions in every walk of life. Instead of, “The whole world is filled with His glory” (Isaiah 6:3), we hold that “The whole world is filled with the halakhah.” The vigorous dissemination of the concept Da’at Torah (authoritative Torah opinion) attests to this. This concept, whose current sense developed only in recent generations,11 has expanded the realm of halakhic adjudication and the cut-and-dried educational approach to broad areas never before included within the conventional boundaries of the halakhah. It also invites authoritative legal judgments on issues that cannot be decided through a question-and-answer format, and for which there are no precedents or binding sources. The Torah scholar here engages in a sort of “creative Torah activism” of his own that admits of no gray areas not subject to the law. While admittedly the rabbi is responding to an accelerating social trend that seeks halakhic judgment in every realm, including on questions of politics, health, and family, by so doing he gradually transforms all of religious culture into the province of the law. In my opinion, this reflects a contemporary spiritual impoverishment—a loss of complexity, diversity, and multiplicity—and also greatly hinders the creation of cultural dialogue on both sides of the fence.

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Let no one misunderstand me: I agree with the claim that it was the fidelity to religious law that established a common denominator among disparate Jews and competing Jewish schools of thought over the generations. Yet a common denominator is not necessarily the exclusive expression of a culture, and certainly not of the national or religious cultures. Historical Judaism is a far richer phenomenon than its common denominator, far more comprehensive than the glue that holds the various schools together. For this reason, exaggerated halakhic formalism is liable to impoverish it from within. So much for religious society. Yet, lo and behold, a parallel process appears to be playing itself out within Israeli society in general. Here as well, the aspiration for cut-and-dried legal verdicts in every walk of life is intensifying. Here as well a prominent tendency to subsume the entire ethical realm within the realm of law, thereby dispensing with multiplicity and ambiguity, is apparent. From the side of judicial authority, we hear that “The whole world is filled with the law,” while, from the side of society, we see that men and women in the State of Israel have ever greater expectations that every question be determined by the Supreme Court, even those regarding social, moral, or ideological issues. By so doing they grant pride of place to formal rather than cultural considerations. Under these circumstances, the day is not far off when the judges will be required to determine the meaning of the term “the Rock of Israel” that appears in the country’s Declaration of Independence. (Is it the God of Israel? Jewish genius? A rock among the rocks of Jerusalem?) Furthermore, the premise that if a person is legally acquitted he must be morally impeccable and all his deeds entirely legitimate seeps ever more steadily into the public consciousness. To the best of my understanding, the concept of “creative judicial activism,” which comes from the school of the chief justice of the Supreme Court, corresponds in many ways to the concept of “Torah opinion” so dear to contemporary ultra-Orthodox society. In this state of affairs, when society and culture align themselves in accordance with the halakhic order on the one hand and the legal order on the other, the result is that one knife hones the other—the formal is pitted against the formal—and tension abounds. I consequently support the stance of Chief Justice Barak, whereby the fact that a given issue is justiciable does not in any way imply that it ought to be judged. In many cases, it is preferable for the judicial system to withdraw and allow the question to be explored on the moral, philosophical, political, and communal levels. What better precedent could we desire than the tradition of Lurianic kabbalah that God Himself—”whose glory fills the entire world”—contracted Himself and withdrew inward in order to make a place for the world. So far I have enumerated three possible ways of mitigating the tension: • Decoupling the democratic idea and the liberal idea, at least on the methodological level.

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• Recognizing the absence of an obligatory religious norm for the character of the Jewish political regime. • Neutralizing the growing halakhism in religious society and the growing legalism in Israeli society. I would like briefly to mention a fourth method, no less important in my eyes than its predecessors. The reference is to the prevailing practice in Jewish sources of learning from the ways of the (enlightened?) gentiles in matters of government. Several of the commentators on the Pentateuch had derived this from the narrative about Jethro, priest of Midian, who taught Moses correct procedures of political and legal organization (Exodus 18:14–27). “Knowledge of how to manage house and country was far removed from the business of prophecy,” writes Rabbi Yitzhak Abrabanel (Spain and Italy, circa 1500). “Jethro cornered Moses on the subject of the administration of justice, until he had taught him how to appoint officers and govern the people.”12 Abrabanel’s underlying premise was that the original message of Moses and the other prophets focused entirely on the spiritual rather than the political plane. In this latter sphere their world was open to the external influence of the gentile kingdoms, for purposes of adopting practical patterns of government. Abrabanel plays down the significance of the political field. Yet other sages as well, who do not share his approach, note the universal character of this field. “Both Israel and the nations are similar with regard to the appointment of governing officials, as both require political arrangements,” writes Rabbi Nissim ben Reuven (the Ran) of Gerona in the fourteenth century.13 Some of them rely for this purpose on the Torah’s emphasis: “And thou shalt say, I will set a king over me, like all the nations around me” (Deut. 17:14). The limits placed on the Jewish “king’s law” (whether it was absolute or constitutional) were also often fixed in accordance with the variable prerogatives bestowed by surrounding nations upon their monarchs.14 The Italian republics eventually also became models for imitation and adoption in the view of Jewish religious authorities.15 There are additional examples of this way of thinking, which is open to external influences in matters of state and regime (not necessarily in matters of spirit and law). In not a few instances this was a conscious and explicit policy, with no particular need for camouflage. One of the distinguished scholars of this generation, Rabbi Shaul Israeli, sums up the tradition in the following unequivocal terms: Among the gentile nations the king’s prerogatives are contingent upon the people’s consent, and whatever was agreed upon at the time of the king’s appointment has the force of law, for Israel as well. The source for this appears to be the Torah’s statement, “like all the nations.” For the gentiles’ monarchic appointments are valid, and from thence derives the validity of Jewish kings and

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princes also, for we have learned that the Torah granted Israel permission to appoint themselves rulers in accordance with the gentiles’ manner of appointments. . . .The fact that the Torah found it necessary to emphasize that the king’s appointment resembles that ‘of all the nations,’ which is found in no other law, is certainly not derogatory (or in any event, not only derogatory).16

The above statements were made not in reference to a particular regime, but to the question of regimes per se. And now that the “gentiles’ manner of appointments” in our times has become democratic in form, is it not appropriate to affirm that it “has the force of law for Israel as well”? Rabbi Israeli answers clearly in the affirmative. Is there any need to point out that this (traditional!) line of thought provides another opportunity for a possible meeting between a “Jewish” state and a “democratic” one? Finally, I would like to return to the question of human liberty and civil rights. There is no doubt that in this sphere real gaps are likely to emerge between traditional (or religious) outlooks and modern liberal (or secular) approaches. A direct confrontation is likely to arise here between the concept of obligations and that of rights, between a heteronomous emphasis and an autonomous one, between granting precedence to the group or to the individual, etc. Yet a struggle like this between values is currently taking place not only within the Jewish State and society, but within the hearts of numerous individuals as well. It pertains not only to those persons who explicitly declare their personalities to be the arena for such a struggle. It effectively pertains to every man and woman, every Jew and Jewess who has grown up in a modern Western state protective of individual rights, and who would be plunged into deep crisis if he or she were deprived of these rights. I believe that contemporary religious and ultra-Orthodox Jews as well would cry out if they were denied in practice those liberties with which they were raised and educated. Let me illustrate my point. In Maimonides’ introduction to his philosophical work, the Guide of the Perplexed, he presents us with another possible struggle taking place within every person’s soul—not between the edicts of the halakhah and individual rights, but between the conclusions of the intellect and the simple meaning of the text of the Torah. Maimonides vividly describes the existential crisis that afflicts the religious person when he is required to choose between one or the other. Such a person finds himself “in a state of perplexity and confusion.” On the one hand, he has the power to follow his intellect—yet then he would deem himself to have betrayed the Torah; on the other hand, he has the power to adhere to the simple meanings of the Torah—”And not let himself be drawn on together with his intellect, but rather turning his back on it and moving away from it”—yet this also is to no avail, as a person cannot choose not to know that which he knows. Accordingly, this person “would be left with the imaginary

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beliefs to which he owes his fear and difficulty, and would not cease to suffer from heartache and great perplexity.”17 He will necessarily suffer an existential crisis, then, unless he finds the point of juncture enabling him to reconcile his two worlds. In other words, in Maimonides’ day the contradiction arose between the rational truth that permeates one’s entire being and the faith that also suffuses a person’s heart, which appeared to be Judaism, thus producing a complete split. Yet in those times Maimonides spoke only of the freedom to know the objective truth. For no one enjoyed individual liberties in his natural environment, neither Jew nor Muslim nor Christian. They were all denied freedom of speech and action. In contrast, a contemporary individual, a Jew who grew up in our world, would find him- or herself in such a crisis even if deprived only of his personal, subjective freedom. Even if at times one made verbal pronouncements to the opposite effect, even if one consciously chose a different set of beliefs, one “would remain in a state of perplexity and confusion . . . and would not cease to suffer from heartache and great perplexity.”18 The synthesis, then, is mandated first by the necessities of life and the charge to preserve life on the individual and communal level (in accordance with the minimalist context with which I opened). It is also demanded by the existential world of Jews who have internalized the conditions of a modern democratic state. And naturally, it is also sometimes required by a human being’s principled decision to seek from the outset to fuse two ethical worlds that have left their stamp on him or her.19

NOTES 1. For a justification of such a narrow characterization of democracy, and for literature on the subject, see Ruth Gavison, “A Jewish and Democratic State: Political Identity, Ideology, and Law [Hebrew],” in Ariel Rozen-Zvi and Dafneh Barak-Erez, ed., Medinah Yehudit ve-Demokratit (Tel Aviv, Israel: Ramot-Universitat . Tel-Aviv,1996), 176–79. 2. In contemporary philosophic literature this is termed the “paradox of tolerance.” See: D.D. Raphael, “The Intolerable,” S. Mendus, ed., Justifying Toleration (Cambridge, Eng.: Cambridge University Press,1988), 139; S. Mendus, Toleration and the Limits of Liberalism (London: Macmillan, 1989), 18–19; P. Nicholson, “Toleration as a Moral Idea,” Aspects of Toleration, (London: Methuen, 1985), 10; A. Ravitzky, “The Question of Tolerance in the Jewish Religious Tradition,” Yaakov Elman and Jeffrey S. Gurock, Hazon Nahum (New York: Yeshiva University Press, 1997), 366–67. 3. For an expansion on this subject see my book, Herut al ha-Luchot [Freedom Inscribed] (Tel Aviv, Israel: Hotsa’at ‘Am ‘oved, 1999), 119–20. 4. Naftali Zvi Yehudah Berlin, He’emek Davar [Commentary on the Pentateuch] (Jerusalem: Hotsa’at El ha-mekorot, 1959), Deut. 17:14.

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5. Eliezer Schweid, Ha-Tzionut she-Aharei ha-Tzionut (Jerusalem: Na-Sfriyah haTsiyonit, ‘al-Yad ha-Histadrut na-Tsiyonit ha-‘okmit, 1996), 135–38. 6. Aviezer Ravitzky, Religion and State in Jewish Philosophy: Models of Unity, Division, Collision and Subordination (Jerusalem: Israel Democracy Institute, 2002). 7. Mishnah Sanhedrin 2, 2; TB Sanhedrin, p. 19. 8. Maimonides, Mishneh Torah, Laws of Kings 3, 7; Laws of the Sanhedrin, 2, 5. 9. A. Ravitzky, Messianism, Zionism, and Jewish Religious Radicalism, (Chicago: University of Chicago Press, 1996), 10, 207. 10. Haim David ha-Levi, Dat u-Medinah (Tel Aviv, Israel: n.p., 1969), 49; idem, “A Response” [Hebrew], Af Sha’al—Mitzvah min ha-Torah?, ed. Mordechai Breuer (Jerusalem: Oz ve-Shalom, 1978), 9. Compare: Kalman Cahane, Ha-Medinah baHagut ha-Yehudit, 182: “The Torah does not prescribe a certain type of regime, but articulates fundamental requirements that must be fulfilled in any regime.” 11. See Ya’akov Katz, “Da’at Torah—The Unlimited Authority Claimed by Halakhic Authorities [Hebrew],” Ben Samchut le-Autonomyah be-Masoret Israel, eds. Ze’ev Safrai and Avi Saguy (Tel Aviv, Israel: Hotsa’at ha-Kibuts ha-me’uh.ad be-shituf ‘im . Ne’emne Torah va-‘avodah-ten’uah datit tsiyonit, 1997), 95–104; Binyamin Baron, . Da’at Torah ve-Emunat Hachamim ba-Hagut he-Haredit (M.A. Thesis, Hebrew University of Jerusalem, 1996); Lawrence Kaplan, “Daas Torah: A Modern Conception of Rabbinic Authority,” in M. Sokol, ed., Rabbinic Authority and Personal Autonomy (Northvale, N.J.: J. Aronson, 1992), 1–60. 12. Yitzhak Abrabanel, Perush ‘al Neviim rishonim (Jerusalem: Torah Va-da’at, 1955), I Kings 3, section 3, 480 [Hebrew]. 13. Nissim ben Reuven, Derashot ha-Ran, A.L. Feldman edition, (Jerusalem: Mekhon Shalem Yerushalayim, 1977), sermon 11, 190 [Hebrew]. 14. Shmuel Shilo, Dina de-Malchutah Dinah (Jerusalem: Hotsa’at Defus Ak. ademi bi-Yerushalayim, 1975); Amos Funkenstein, Tadmit ve-Toda’ah Historit ba-Yahadut u-va-Svivatah ha-Tarbutit (Tel Aviv, Israel: ‘Am ‘oved, 1991), 180–82; Leo Landman, Jewish Law in the Diaspora: Confrontation and Accommodation (Philadelphia: Dropsie College for Hebrew and Cognate Learning, 1968). 15. Avraham Melamed, Achotan ha-Ktanah shel ha-Hochmot—Ha-Machshavah haMedinit shel ha-Hogim ha-Yehudiim ba-Renessance ha-Italki (Ph.D. thesis, University of Tel Aviv, Israel, 1977). 16. Shaul Israeli, Amud ha-Yemini (Tel Aviv, Israel: Moreshet, 1966), section 9, 70–81. See: Gerald J. Blidstein, Ekronot Mediniim be-Mishnat ha-Rambam (Ramat Gan: Universitat . Bar-Ilan, 1983), 150–51. 17. Maimonides, Guide of the Perplexed, introduction, trans. by S. Pines (Chicago: University of Chicago Press, 1963), 5–6. 18. Maimonides, Guide of the Perplexed, 5–6. 19. See: Ze’ev Falk, Yahadut ve-Demokratiah (Jerusalem: Yad Adam ve-Gid’on . Vailer, 1982); Ariel Rozen-Zvi, “A Jewish and Democratic State—Can the Circle be . Squared?” [Hebrew], Iyunnei Mishpat, 19 (1995), 498–512; Asher Maoz, “The Values of a Jewish and Democratic State,” [Hebrew], Iyunnei Mishpat, 19 (1995), 547–630; Schweid, Ha-Tzionut she-Aharei ha-Tzionut, 132–48; Dov Rafel, “Jewish and Democratic Values—Solidarity, Equality and Liberty,” in: (no editor) Yahadut ve-demok . . ratyah mah.lok. et ve-ah . . . dut (Jerusalem: Merkaz le-h.ek. er mah.ashevet ha-h.inukh behagut ha-Yehudit shele-yad Mikhlelet Lifshits, 1996), pp. 3–11.

11 In the Shadows of Modernity? Theology and Sovereignty in South Asian Islam Ayesha Jalal

The relationship between theology and sovereignty has remained a vexed and divisive issue throughout Muslim history. Central to questions of state power and legitimacy, it has generated relentless activity in Muslim intellectual circles since the early centuries of Islam. It has also been a source of bitter political dissensions that have often resulted in Muslims spilling Muslim blood. In principle, all Muslims subscribe to the hakmiyat or sovereignty of God over the universe. Consistent with belief in the unity of God or tauhid, the notion of divine sovereignty lies at the heart of the Islamic view of universal brotherhood. It has in modern times provided ideological justification for rejecting territorial nationalism and the separation of religion from politics.1 Yet from its very inception, normative Islam was at odds with political practice with a de facto, if not de jure, separation of religious and temporal power. An attempt was made to reconcile the disjunction between theory and practice discursively through the institution of the khilafat, whose spiritual and temporal authority extended in principle to the worldwide community of Muslims, or the ummah. Muslims have never agreed on the issue of the khilafat. The ummah was divided politically, raising questions about loyalty to temporal sovereignty, long before the emergence of the modern nation-state system. Jurists or the fuqaha in their fiqh, theologians or the mutakallimun in their kalam, quite as much as the philosophers or fulsuf in their falsifa vigorously debated how a theology that held God alone to be the sovereign of the universe impinged on the exercise of temporal sovereignty. It was the jurists who, with the help of state power, were most successful in registering their claim to interpret the law of God. The claim has been contested ever since. A tendency in modern scholarship to privilege the rigid interpretations of the fuqaha has 269

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had disastrous consequences, both for the Muslim world internally and for its ongoing dialogue with the West. Divine law precedes the state in Muslim political thought. Scholars have been more successful in underlining the singular importance of the sharia, derived from ‘shar, literally God’s command, than to demonstrate what constitutes the sharia and how and by whom it ought to be interpreted. In the absence of any clear consensus on what the sharia includes and does not include, scholarly analysis and Muslim political practice have often mistaken the form for the substance of God’s laws, heaping confusion on an already confused and confusing debate on theology and sovereignty in Islam. This has had dire implications for citizenship rights in modern Muslim nation-states, compounding the authoritarian tendencies inherent in their institutional structures at the expense of the democratic aspirations of their citizens. Portraying this as a problem inherent in Islam thwarts any sort of an intellectual challenge against literalist and conservative interpretations of the sharia. Such a challenge is vital if Muslims are to emerge from the shadows of modernity and tackle the multiple problems confronting them at this critical juncture in their history. This chapter begins with a discussion of the problems stemming from the scholarly privileging of a dominant, but by no means hegemonic, strand in Islamic political thought. Despite agreeing on fundamentals, Muslim jurists did not have any coherent theory of the state.2 The historical evidence from other parts of the world is also far too varied to allow for a systematic conception of the Islamic state. An examination of the historical experience of South Asia, and more specifically Pakistan, can usefully complement the scholarly focus on Islamic intellectual production in West Asia. Key elements in the ongoing debate on an Islamic state in Pakistan are traceable to the thought of the great eighteenth-century Muslim scholar, Shah Waliullah (1707–1762) whose ideas have influenced both orthodox and modern Muslim thought in South Asia. By identifying the main threads of the discourse on theology and sovereignty, and the disjunctures in political practice, the chapter aims at dismantling the mental barriers that have been such a bar to independent critical thinking about Islam in general and its relevance to Muslims as citizens of modern national states in particular.

WHAT IS THE SHARIA? In her celebrated work, State and Government in Medieval Islam, Ann Lambton notes that, while Greek thought was concerned with the basis of state authority, the sharia, or Islamic law, is prior to the community and the state. Although both deal with ethics, Hellenistic tradition conceived of politics in terms of moral philosophy, while Muslim thinkers viewed it as

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theology. There is no distinction between the moral and the legal sphere in the sharia. The antithesis between the individual and the state, central to modern political thought, does not exist in Islam. Nor is there any difference between a temporal end, which concerns the state, and an eternal one, which is the domain of the church. Since the “individual and the state, or the religious community, are broadly at one in their moral purpose . . . the conception of the individual is not prominent, nor the conception of rights.” Islam, she notes, “does not in fact recognize the legal personality of the individual in which his rights are secured to him and vested in him by law.” The state was able to exercise “a very considerable degree of coercion” with the sanction of the jurists, which, in turn, encouraged political quietism.3 The absence of individual rights is a feature of juristic discourses. They cannot be attributed to the teachings of the Qur’an. Like any other great religious tradition, Christianity, Judaism, or Hinduism, the ultimate goal for Islamic political philosophy is to promote the development of the community through the creation of a just and equitable social order. The case of Islamic exceptionalism, often made by Orientalist scholarship, is singularly off the mark. Not only did Islam build on the preexisting tribal traditions of kingship in the Arabian peninsula, it also borrowed from those in the Ancient Near East and the Indian subcontinent, as well as the Hellenistic and Roman world.4 Lambton attributes the restrictions on “individual freedom” to the absence of any formal separation of spiritual and temporal powers in juristic “theories” of the Islamic state. This “creat[ed] . . . a situation in which power was arbitrary and exercised by the last despot who had usurped it.”5 But even the juristic legitimization of absolute powers for the ruler, who as God’s vice-regent on earth reflected His universal sovereignty, was always qualified by an insistence on just rule. As even Lambton concedes, there was always a de facto separation between the temporal and the spiritual. What captures her attention, however, was the absence of any ideological separation between spiritual and temporal authority in Muslim political thought. No Islamic ruler rejected the sharia altogether.6 The sharia means the sum total of all the essentials of the faith. Concerned with equity, justice, and public good, the principal aim of the sharia as the moral basis of a Muslim society is the establishment of an order that eliminates all forms of human exploitation. While sharia constitutes the commandments of God and Prophet Muhammad, fiqh is the science of the law of sharia, and a product of the human mind. Much of what is referred to as the sharia today is effectively fiqh, the work of Muslim legal scholars who, while basing themselves on the Qur’an and the sunnah of the Holy Prophet, were influenced by the sociohistorical circumstances in which they lived. So without denying the immutable and supra-historical relevance of the sharia, it is important not to confuse the shadow for the

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substance of Islam. It would serve far more useful purpose to place fiqh, or the science of studying the sharia, in its proper historical perspective and, while drawing on it for illumination, not lose sight of its development as first and foremost a product of human mental activity. What Muslims consider to be a divine law has through historical accretions acquired a number of other characteristics that cannot be ascribed to God by any stretch of the imagination. The sharia is the common pronunciation of the Arabic word that in its evocative desert imagery literally means “a watering hole” or “a path of water,” hence “a clear path.” A model for individual behavior, the sharia outlines certain rules covering a wider spectrum of life than regulated by Anglo-Saxon law but which for the most part are unenforceable. Left to individual Muslim conscience, the sharia is a normative concept that offers a balanced path to a peaceful and orderly life in both its public and private dimensions in this world as well as the hereafter. Specific rules governing any single matter are significant only in the context of the whole practice of the faith. They cannot be plucked at random to suit the individual’s personal predilections or the political agenda of an overly articulate segment of society. Throughout history, the sharia has been variously interpreted, leading one scholar to define it as a theoretical law, a lawyer’s law, and a diversified law.7 The limited number of Qur’anic verses dealing with law and differences of opinion among the jurists, in any case, militated against the sharia ever becoming a consistent code of law. Aziz Al-Azmeh has detailed the historical development of the sharia through a close study of juristic works called ahkam and siyasa sharia. The ahkam are instruments of absolutist government that specify the pragmatic and ethical content in terms of the sharia. They are not codes of law but a body of general prescriptions, precedents, and a compendium of rulings within the bounds of which the caliph can exercise his judgment. He declares “obsolete” many variants of Orientalist works on Islam and shows that, far from being a rigid code of law covering all facets of life, the sharia was no more than a set of pietistic injunctions by the ulema to the ruler with no binding force.8 At the same time, they were anxious to be firmly on the side of orthodoxy, which had developed an amazing shock-absorbing capacity; rarely was anyone allowed to breach the steel wall of ijma or consensus. Such radical statements as they made in their works were dismissed as isolated or idiosyncratic and quietly buried.9 Sectional interests at court and in society at large led the ulema to reformulate certain common themes and subjects of the Qur’an, the sunnah and preexisting Persian and Greek political wisdom as sharia, albeit narrowly defined. This was what shaped Muslim institutions and politics, which were then justified in a genre of writings called siyasa sharia.10 In traditional Muslim societies the locus of politics was the arena of fiqh and not the khilafat or the state. Prior to the modern period, discussions

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of the state in Islam referred to the problem of government and the norms of behavior for the ruler rather than the state as a generic category in the Western sense of a sovereign corporate institution or the body politic.11 It was in this context that the ulema asserted themselves as a corporate and professional body, casting the world in the mold of their narrow conceptions of the sharia by reserving for themselves the right to assume the role of moral guardians of the community.12 In order to give sanction to differences of opinion among the jurists of Islam, one saying of the Prophet is repeatedly quoted, “After my death there will be seventy-two sects among the Muslims, but I will be in the seventy-third.” Nothing in this oft-quoted hadith validates the claims of the jurists. There was a great complexity and variation in the juristic discourse on religiously based sovereignty in the early centuries of Islam.13 It was to counteract this trend that the forces of Sunni orthodoxy purportedly suspended ijtihad or independent reasoning with the support of Abbasid state power. Only four schools of fiqh—the Hanafi, Shafi, Maliki, and Hanbali—were deemed to be authoritative by Sunni Muslims. These, as Muhammad Iqbal, the preeminent South Asian Muslim poet and philosopher, pointed out in his lectures on the Reconstruction of Religious Thought in Islam, were “individual interpretations” and could not be treated with any degree of finality. In his considered view, whatever the justifications for the jurists slamming the doors shut on ijtihad in the thirteenth century, the situation had “changed,” and the world of Islam was confronted with so many new challenges that such an attitude was wholly unwarranted. “The claim of the present generation of Muslim liberals to reinterpret the foundational legal principles, in the light of their own experience and the altered conditions of modern life,” in Iqbal’s opinion, was “perfectly justified.” In keeping with the dynamic spirit of Islam, each new generation should be “guided” without being constrained by the work of its predecessors to solve its own problems.14

SHAH WALIULLAH’S THEOLOGICAL REFLECTIONS It was in keeping with the spirit of his own times that Shah Waliullah wrote his prodigious works, covering the entire domain of Islamic thought. If his championing of the hadith gave rise to puritanical reform movements, his equally emphatic endorsement of ijtihad, or independent reasoning, inspired Muslim modernists from Sayyid Ahmad Khan to Muhammad Iqbal to try and craft an Islamic response to colonialism and Western modernity. Along with his rich intellectual contributions in the domain of Ikhlaq literature or Islamic ethics, this doyen of Sunni orthodoxy single-handedly transformed Indian Muslim approaches to the sharia. Firmly located in the classical Muslim tradition, Waliullah’s greatest contribution to Islamic thought was

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his efforts at synthesizing by harmonizing (tatbiq) the contending strands in Muslim religious thought in grand Hegelian fashion. He gave primacy to the sharia over the Sufi tariqah, which had struck a deeper chord in the subcontinent because of the more accommodative attitude of its practitioners toward preexisting religious and cultural traditions.15 Amidst the political turmoil and social and economic crises following the Mughal emperor Aurangzeb’s death in 1707, Waliullah was determined to purge Sunni Islam of polytheistic accretions from Hinduism and the excesses of a resurgent Shi’ism. In an attempt to minimize the scope for dissension and make practical sense of the hair-splitting disagreements among Muslim jurists, Aurangzeb had already ordered the compilation of the Fatawa-I-Alamgiri by a syndicate of ulema, this ultimate authority on Hanafi law in the subcontinent. But even under so pious and committed a Muslim ruler as Aurangzeb, the sharia was not the only basis of law in India. The sharia dealt with the personal law of Muslims and was also applied in religious matters such as apostasy. Non-Muslims were excluded from the penal provisions of the sharia. There was a separate category of common law that included some aspects of the sharia related to ordinary crimes and applied to all the subjects, irrespective of religion. Then there was the qanun-I-shahi, consisting of farmans or imperial edicts, and dastur amals, or regulations that covered a large space. There was also qanun-I-urf, or customary law, that was not consistent with Islamic law but was accepted for purposes of convenience. Precedents constituted another source of law, though qazis exercised their individual judgment and were not bound to follow decisions taken by other courts. Finally, there was the concept of equity and good conscience.16 Waliullah in his magnum opus Hujjut al-Balagha (literally, the conclusive argument from God), spells out his conception of the relationship between theology and sovereignty, balancing the absolute powers of the ruler with demands of social justice and an equitable political order. Described as “theological sociology,”17 the Hujjut al-Balagha is a synthetic work of history, philosophy, law, theology, as well as a psychological analysis of human nature. Waliullah interpreted the sharia as “a body of injunctions” in accordance with man’s instinctive intuitions. On this view, prophetic reform was the revival of the potentialities inherent in human societies.18 Each religious revelation was suited to the temperament and customary practices of the people who receive the message even though its origin lay in the same primordial, archetypal religion, or din. This ideal form conforms to what is most beneficial (masalih, from maslaha) to the nature (fitra) of people. The notion of masalih, corresponding to the idea of public good, is broadened to include the spiritual aspects of life. A prophet preserves elements of previous revelations that are beneficial to the human condition and adds new things that are the need of the time. Religious rituals have

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specific purposes and “the quantities in their legislation take into account the situation and customs of those on whom they are imposed.” Consequently, the “anticipated sources of things conducive to benefit (masalih) differ in accordance with the differences in the eras and customs and therefore abrogation is justified.”19 This is a refreshing departure from the usually inflexible discourse on the sharia. In the preface to his Al-Badar al-Bazagha, which details his historical study of human civilizational development, or irtifaqat, Waliullah makes plain his skepticism of earlier Muslim philosophers, rationalists, and theologians.20 None was free of error even if they hit on some correct explanations. Like Khaldun and Ibn Sina, he considers cooperation to be intrinsic to the natural disposition of human beings. But he takes a holistic view: sociocultural and political development has to parallel the moral and spiritual growth of humankind. What differentiates humans from animals is their need to work for the collective good (ra’y-I-kuli), an aesthetic (zarafa) sense for beauty (husn), and the use of knowledge (ilm) for the realization their spiritual being.21 Without a corresponding irtifaqat substructure providing for basic human needs, moral and spiritual development is impossible. It is the cultivation of the aesthetic sense that motivates human societies to evolve to a higher stage of development. He identified four stages of irtifaqat: 1) forms of sociality based on natural or instinctive laws; 2) the integration of family life and social transactions; 3) the development of a local political order; and 4) its extension to the international level, which he equates with the khilafat.22 The first three stages are applicable to any society. It is only the last stage that corresponds to Waliullah’s idea of the Islamic state. Instead of arriving at the ideal stage through classical arguments based on the Qur’an and the Sunnah, he constructs a theory of society on empirical and rational foundations with a heavy dose of religious prescriptions. According to him, the Islamic state is a natural outcome human beings’ free, rational, and balanced pursuit of their sociocultural objectives according to their natural disposition, so long as it is not tainted by moral perversion or any other deviation from the sharia, defined as equity, justice, and public good.23 A government capable of ensuring law and order is necessary so that the individual, the primary unit of social organization, can strike the right balance between the material environment and his/her natural disposition. Yet the “actual intention of the providence behind the divine legislation” was “not the condition of the individual but rather the condition of the collectivity.”24 Human beings are moral by instinct and naturally disposed to being encumbered with responsibility (taklif) and being held accountable for their deeds. Thus, a person of unimpeachable spiritual merit had to be appointed imam to promulgate the din and assert its supremacy over other faiths. He had to use “great compulsion” in enforcing the external rituals of

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the faith, since the religious duties of the majority of people can be fulfilled only by establishing times, pillars, conditions, rules, and punishments. Ordinary Muslims had no choice in matters to do with the sharia. The imam: should keep hidden the knowledge of the inner meanings of the divine laws . . . because most of those on whom the laws are imposed do not recognize the beneficial purposes. . . . For if he permitted them to omit some of them, and explained that the basic goal is something other than these outer forms, he would widen for them the avenues of unqualified discussion and they would disagree excessively, and what God wanted for them would not be achieved.25

Regulating the outward behavior of Muslims and quantifiable actions is possible with help of the state’s coercive power. The same cannot be said for a believer’s intentions and purposes based on the quality of inner faith, or iman. Waliullah held that focusing on deeds did not go against the grain of the sharia insofar as actions have an effect on one’s inner state of mind. But it is the categorical assertion of Muslim exclusivity vis-à-vis other communities that betrays his spatiotemporal location in predominantly non-Muslim India. Since mere conquest “cannot remove the thick veils over their hearts,” the truth of faith has to be established through forceful rhetoric and demonstrated behavior so that all distortions of Islam are corrected in the public eye.26 Deploring Waliullah’s endorsement of what he calls “negative or punitive Islam,”27 Fazlur Rahman declared this “a travesty of the democratic impulse of the Qur’an,” which places “the entire responsibility for understanding as well as implementing Islam on the community and not upon any elite.”28 More problematic from the point of view of the relationship between theology and state sovereignty was Waliullah’s prioritizing of form over substance or, more precisely, quantifiable actions over beneficial purposes of legal injunctions. Quantifiable actions in the domain of religious rites—such as the precise number and manner of daily prayers—may be crucial to maintain the cohesiveness of the community. Extending them into the sociopolitical domain in a literalist vein can only have debilitating consequences for the individual and more so for the community if substituted for beneficial purposes. This is tantamount to mistaking the outer husk for the kernel of Qur’anic injunctions—best demonstrated by the ongoing controversies over zakat, or compulsory alms, which Muslims with means are obliged to give for the welfare of the poorer members of the community, and riba, or interest-taking, in Islamic countries. Instead of focusing on the beneficial purposes behind the injunction to pay zakat annually and avoid riba, namely the accumulation of excess wealth and the social inequity it creates, Muslim jurists have concentrated on imposing the precise percentage of alms tax levied at the time of the Prophet and stoutly

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rejected all forms of interest taking as un-Islamic.29 By the same token, a preoccupation of the ulema with the formal cohesiveness of the community has nurtured an exclusivity that not only contradicts the Qur’anic emphasis on universalism but also undermines its spirit of egalitarianism and insistence on social justice for all.

TOWARD AN ISLAMIC STATE? Commenting on the separation of state and civil society in modern Europe, the poet-philosopher Muhammad Iqbal asserted: Such a thing could never happen in Islam; for Islam was from the very beginning a civil society, having received from the Qur’an a set of simple legal principles which . . . carried . . . great potentialities of expansion and development by interpretation.30

In line with the thinking of Arab scholars like Muhammad Abduh (d.1905) and Rashid Rida (d.1935), he denied that “the Law of Islam is stationary and incapable of development.”31 It was the fear of disintegration, natural in a period of political instability, that led the “conservative thinkers of Islam [to] focus . . . all their efforts on . . . preserving a uniform social life for the people by a jealous exclusion of all innovations in the law of Shari’ah as expounded by the early doctors of Islam.” What they did not see, “and our modern Ulema do not see,” Iqbal continued, was “that the ultimate fate of a people does not depend so much on organization as on the worth and power of individual men.” In a coercive society, “the individual is altogether crushed out of existence.” Instead of holding on to worn-out ideas tenaciously, Muslim societies ought to invest in the “rearing of self-concentrated individuals” who could see that “our environment is not wholly inviolable and requires revision.”32 The only purpose of the state in Islam was to translate into reality the principles of equality, solidarity, and freedom that constitute the very spirit of Islam. It was in this sense that “the State in Islam is a theocracy, not in the sense that it is headed by a representative of God on earth who can always screen his despotic will behind his supposed infallibility.” An Islamic “theocracy” was one that sought to “realize the spiritual in a human organization.”33 The Qur’an sought to “unite religion and State, ethics and politics in a single revelation much in the same way as Plato does in his Republic.”34 Collapsing the meaning of sacred and profane, Iqbal pronounced that the secular was “sacred in the roots of its being.” An act was temporal or profane if done in a “spirit of detachment from the infinite complexity of life” and “spiritual if it is inspired by that complexity.” Modern thought’s “greatest service” had been in recognizing that the material had no meaning

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without being grounded in the spiritual. There was “no such thing as a profane world.”35 The principle of ijtihad or independent judgment, allowed Muslims to constantly adjust themselves to social change without abandoning the Islamic path. In contrast to the religious scholars, Iqbal believed that since the institution of the khalifa had ceased to exist the right of ijtihad should be vested in an elected Muslim assembly, which “in view of the growth of opposing sects” in Islam, was the “only possible form Ijma can take in modern times.”36 In opting for the republican form of government and collective ijtihad by the Grand National Assembly, the Turks alone among Muslims had asserted the right of intellectual freedom conferred by Islam.37 However, in separating state from religion, the Turks had gone too far. Iqbal critiqued Western Enlightenment philosophy for taking free thinking to such extreme limits as to deny that “all human life is spiritual.” Islam on the other hand was “an emotional system of unification” that “recognizes the worth of the individual” and “rejects blood-relationship as a basis of human unity.”38 Emerging at the moment of a disintegrating Western civilization, Islam “demand[ed] loyalty to God, not to thrones.” Since God was the “ultimate spiritual basis of all life,” loyalty to Him was loyalty to one’s “ideal nature.” The Qur’anic insistence on the immutability of key tenets like tauhid was balanced by an emphasis on adapting to social change through the exercise of ijtihad, the principle of movement in Islam. In Iqbal’s opinion, “Europe’s failure in political and social science” lay in its rejection of a permanent code of ethics while the “immobility of Islam during the last five hundred years” was due to the incapacity of Muslims to keep pace with historical change.39 He confessed that in India the exercise of ijtihad could pose serious difficulties, since it was “doubtful whether a non-Muslim legislative assembly” could be vested with this power of independent judgment.40 Iqbal did not rule out Muslims participating in a parliament alongside non-Muslims and using their right of independent judgment on matters related to their faith. Nor did he elaborate on whether the idea of sovereignty in Islam necessitated Muslim rule. In his presidential address to the All-India Muslim League in December 1930, he asked rhetorically whether it was possible “to retain Islam as an ethical idea and . . . reject it as a polity” in order to embrace the idea of “national politics” in which religion played no part. Iqbal thought it was a contradiction in terms for Indian Muslims to subscribe to a national polity by abandoning the principles of Islamic solidarity.41 It was not that the Islamic worldview rejected love of one’s homeland, or watan. But modern nationalism was not merely about territorial attachments; it was “a principle of human society,” “a political concept” based on the separation of religion and the state. It was this that clashed with Islam, which, “for the first time,

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gave the message to mankind that religion was neither national and racial, nor individual and private, but purely human and that its purpose was to unite and organize mankind despite all its natural distinctions.”42 This was not a conception of religion as a demarcator of difference. Rather it was a notion of religion as faith with the potential to erase national and racial differences in order to attain a universal human consciousness based on the multiplicity of existence in the unity of divine creation.43 Nationalism gave rise to the “relativity of religions,” the notion that religions were territorially specific and unsuited to the temperament of other nations. It was nationalism, therefore, and not religion, which by compartmentalizing people into different nations, was the source of modern conflicts. The “peculiar greatness” of the Prophet of Islam lay in destroying the “invented distinctions and superiority complexes of the nations of the world,” such as land, race, or genealogy, without denying the fact of cultural differences or the manifold multiplicities of tribe, color, and languages that coexisted in the unity of the one and only God.44 Iqbal’s solution to the problem of Muslim identity was a conception of theology and sovereignty that gave primacy to the individual, though by no means in opposition to the community. In an earlier lecture he had commented that the Muslim community was unlike any other on account of its “peculiar conception of nationality,” which had nothing to do with the unity of language or country or of economic interest. It was structured by the religious ideal, though not by its “theological centralization,” which would “unnecessarily limit the liberty of the individual.”45 While applauding Turkey’s “great awakening” following its defeat in World War I, he had struck a cautionary note. The reconstruction of Islam had “a far more serious aspect than mere adjustment in modern conditions of life.” For him the ultimate aim of an Islamic state was the creation of a “spiritual democracy” so that individuals could develop their inherent potential in cooperation with the community.46 This ideal conception of the Islamic state has remained dramatically at odds with the history of the modern nation-state of Pakistan. For the better part of its history Pakistan has been ruled by military and quasi-military rulers exercising despotic power in the name of Islam with scarce regard for the principles of equality, solidarity, or freedom. Civil society in Pakistan, such as it—not Iqbal’s ideal conception of it—exists, carries the legacy of over a hundred years of British colonial rule. Through a sleight of hand, the colonial masters undertook not to interfere in the religion and culture of Indians while retaining the powers to extend control over every aspect of their temporal existence. This was done by separating the personal law of India’s main religious communities from the purview of British colonial law, civil as well as criminal. The sharia was effectively denuded of “public” content—civil and criminal—and “privatized” to apply only to Muslim marriage, divorce, and inheritance issues. If a civil society at all existed in

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British India, its space was badly squeezed between a colonial “public,” which denied citizenship rights, and a communitarian “private,” restricted to the personal laws of religion. Harboring resentments against British colonial rule and irked by the restricted domain of religion, Abul Ala Maudoodi was the most prolific and influential proponent of an Islamic state in Pakistan. Neither a product of Western education nor a trained religious scholar, Maudoodi made a name for himself in the world of Islamic scholarship far beyond the Muslim state he opposed in the 1940s. His brand of conservatism often pitted him against traditionalist ulema. But his promotion of the idea of Islamic state, through scholarly works as well as political activism, earned him their grudging respect in the political battlefields of Pakistan. Iqbal had favored consolidating Muslim power in the northwest without a formal political separation from India. Maudoodi’s proposed solution to the Hindu-Muslim problem in an undivided India was “a state of federated nations,” which would not be the sovereign domain of any single nation but an entity organized on international principles of federation. The different nations constituting the federation would enjoy complete cultural autonomy in matters to do with religion and be equal partners in the running of the government. A federal center would not have powers to intervene in the internal affairs of culturally sovereign nations. Each with its own national social system could discipline and punish members according to their personal laws.47 This gave communities as sovereign nations, not the federation, power over marriage, divorce, and inheritance, with stern implications for women. The laws of the sovereign nations would be on par with those of the federated state. A federal court was to decide conflicts between the different units. The nation most vigorous in pursuit of its cultural ethos would be in a position to influence the laws of the federated state as a whole.48 This was a scarcely veiled statement of intent by the founder of the Jamat-i-Islami, formed in March 1941, to propagate his version of Islam throughout the length and breadth of India. Unlike Iqbal’s, Maudoodi’s conception of the role of Islam in the state left no space for individuals to negotiate their own balance with the community. There is no conception of citizens influencing state policy, an omission justified by the claim that in an ideal Islamic state where justice and equity would prevail, the only kind of possible dissent would be apostasy. Submission to Allah, who alone is sovereign of the world, meant obeying whoever could claim to be the authoritative interpreter of divine will. Iqbal had recommended reposing that authority in an elected parliament. Maudoodi was himself a pretender to that supreme position of authority. At the helm of the Jamat-i-Islami, which aimed at making Muslims out of the faithful, Maudoodi implicitly excluded the majority of Muslims from his definition of the true community of Islam.49 In contrast to Iqbal, who held

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that the idea of the state was not dominant in Islam, Maudoodi considered the acquisition of state power essential for the realization of the Islamic conception of life.50 An admirer of Shah Waliullah, who had highlighted jihad as a duty incumbent on Muslims, Maudoodi advocated waging jihad as a means to political power. In a reversal of priorities, he declared the lesser jihad (against the enemies of Islam) to be more important than the greater jihad (against one’s inner self). This justified a jihad against internal Muslim “others” quite as much as against non-Muslims. Taking exclusivity to the extreme, and obfuscating his own debt to Western political thought, he argued that an Islamic government could not borrow from others. In this uncompromising scheme, there was no room for the coexistence of difference, be it with fellow Muslims or non-Muslims. Since the Islamic state was by definition ideological, non-Muslims could not aspire to key positions of responsibility. He was evenhanded enough to suggest that Muslims in Hindu-dominated India would also have to live in accordance with the dictates of the majority community. Maudoodi’s Islamic state was not a modern version of the classical khilafat. It was an ideological state that drew upon the broad outlines of Sunni orthodoxy as well as selective adaptations of concepts borrowed from modern Western political thought. His main concern was to conceptualize a state that fitted in with his notion of the true Islamic community. Enforcing the din and managing the state were “ineluctably tied to one another.”51 The Islamic state was God’s kingdom (hakumat-i-ilahiya) with a constitution based on the Qur’an, the sunnah, the conventions of the first four khalifas and fiqh. Maudoodi rejected vesting sovereignty in the people, although in principle he accepted the ijma of the community as opposed to one restricted to the ulema. This nod in the direction of democracy was coupled by an insistence on the right of the state to interpret the sharia with the help of ulema proficient in Arabic and the juristic literature. He did not distinguish between the sharia as a complete way of life (and thus identical with Islam) and as law, which, as he himself admits, “can neither be understood nor enforced separately” from this “complete scheme of life and all-embracing social order.” Maudoodi calls only that part of the scheme “law” that requires the coercive power of the state. As far as constitutional and administrative law is concerned, only the principles are laid down in the sharia. Muslims can work out the rest in accordance with the demands of the age. While distinguishing between the immutable and flexible parts of the sharia, Maudoodi effectively constricted the space for human legislation by including all of fiqh in Islamic law.52 Moreover, he limits the autonomy of the legislature by portraying it as a legal rather than a political body. Its main function is to advise the executive, not hold it responsible. In a further curtailment of individual citizenship rights, dissent against executive authority can be legitimate only when

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it is backed by the consensus of the community. This could happen only in a situation where a government was seen to have transgressed the norms of Islam, an entirely subjective assessment. But the burden of proof was on the dissenting elements. The state was insulated from dissent on the grounds that it could only be virtuous and, therefore, not responsible for infractions of the Islamic law by a government or an official. Clearly then, the Islamic state of Maudoodi’s conception is a powerful authoritarian entity, immune from any system of checks and balances and not answerable to the citizenry on the grounds that its authority is directly derived from God. This is a far cry from a democracy. But in Maudoodi’s circular logic, an ideal Islamic state was inherently democratic, if by that term one means justice and welfare for all. Non-Islamic states need democracy because they cannot ensure a just and welfare-oriented system of governance. Maudoodi’s musings on the Islamic state provoked a barrage of attacks from both the ulema and the liberal intelligentsia. The ulema were incensed at the suggestion that to qualify as interpreters of the sharia they had to be versed in modern systems of knowledge in addition to being proficient in Arabic and the juristic literature. There were howls of protest from the liberals at the explicit authoritarianism of the scheme. Not afraid of changing tack in the light of practical political experience, Maudoodi, after several brushes with the Pakistani state’s coercive apparatus, moderated the authoritarianism of his scheme without compromising on the spirit underlying his idea of the Islamic state. The distinction he had made in his earlier writings between the processes of Islamization and the achievement of the Islamic state provided a useful opening. The curbs on individual rights imposed on citizens of the ideal Islamic state, he argued, were not justified in the period of jahaliya,53 which he likened to tyranny. It followed logically that the provisions of the sharia such as penalties against theft and social infractions could only be implemented after the attainment of the Islamic state. Until that goal has been achieved through a complete revolution of the sociopolitical and economic order, the sharia remains an ideal, not a practical set of religious injunctions and laws that can be enforced.54 This makes the Islamic state an ideal that has to be attained, in the same way as Waliullah’s evolutionary scheme leading up to the establishment of a universal Islamic khilafat, through participation in active politics. Maudoodi’s ideological conception of the Islamic state aimed at influencing the constitutional debate in Pakistan. Such influence as he was able to exercise was more than counterbalanced by the thinking of those who wanted a liberal polity free from manipulation by the ulema. The Objectives Resolution of 1949, which has served as the preamble for Pakistan’s constitutions, tried finding common ground between the different points of views on the Islamic state. While conceding God’s sovereignty over the entire world, the framers of the constitution reposed sovereignty in the

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people on the condition that it was exercised “within the limits prescribed by Him as sacred trust.” The rest of the resolution proceeded to reject the notion of an Islamic state as a religious theocracy. Based on Islamic principles of democracy, the state was to ensure freedom, equality, tolerance, and social justice for all, including the minorities. In what was a concession to the religious lobby, it was the duty of the state to ensure that its Muslim citizens lived in accordance with the teachings of Islam.55 Prime Minister Liaquat Ali Khan, who moved the resolution, hailed it as a step toward transforming Pakistan into the perfect “laboratory” of Islam. But at the same time he declared that the goal was “to build up a truly liberal Government where the greatest amount of freedom . . . [would] be given to all its members.” Non-Muslim minorities had no need to be alarmed by the “mischievous propaganda” of the “maniacs,” “these so-called Ulemas.” They not only wanted to deny non-Muslims the right of equal citizenship but were all “out to disrupt Pakistan” by “misrepresent[ing] the whole ideology of Islam” and creating doubts about the “bona fides of the Mussalman.” A government minister suggested that this resolution was merely trying to establish “a moral state” whose sovereignty would be circumscribed by the Islamic rectitude of the people.56 This was all the pretext the ulema needed to hold the state ransom. They have rarely missed an opportunity to gain political mileage by lashing out against anything attesting to the state’s failure to govern Pakistan along strictly Islamic lines. In doing so they have proven themselves to be a powerful force in shaping the public face of religion in Pakistani society. Divisions within the ulema along sectarian, ideological, and political lines, and the nation-state’s own imperatives, provided breathing space to the “secular” liberal lobby in Pakistan in the first few decades of independence. It was during this period that several fine minds tried to offer alternative ways of settling the question of theology and sovereignty in self-professedly Islamic Pakistan. Recognizing the dangers in waiting for the ideal Islamic state, Muhammad Asad, who lived in Pakistan at the height of the constitutional debate, argued that fiqh was not part of the sharia. There are only two sources of Islamic law, the Qur’an and the sunnah. But this effort to wrest the initiative from the ulema for the liberal modernists was doomed by its rejection of an important part of the Islamic religious tradition. Hoping to reconcile the imperatives of a modern nation-state with Islam, Asad failed to break out of the stranglehold of Sunni orthodoxy by accepting the sunnah as a legitimate source for legislation.57 The sunnah is based on hadith selectively compiled by Muslim ulema. Instead of concentrating on the message of the Qur’an, the jurists used hadith extensively in works on fiqh. The only criteria for the authenticity of hadith is the reliability of the chain of transmission. Tainted by the individual perspectives of individuals who had known the Prophet Muhammad or heard about him from his companions, the hadith

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literature has been a source of much confusion. Literalist interpretations of the hadith, devoid of attention to the specificity of the historical context in seventh-century Arabia, are quite as debilitating as sources of modern legislation as the fiqh literature. In Islam and Modernity, Fazlur Rahman outlined a framework for interpreting the Qur’an that relies as much on history as on literary hermeneutics. Denouncing the piecemeal uses of Qur’anic verses, he proposed a methodology by which Muslims could contend with the West without having to abandon the precepts of their faith or rendering them obsolete. Throughout his long and productive intellectual career, Rahman had been engaged with the central question of whether revelation could have an enduring relevance for religious communities without becoming anachronistic. The interface between history and revelation lay at the core of his intellectual endeavors. He was hounded out of Pakistan after the publication of his book and its alleged distortion of the Prophet’s miraj, or ascent to the heavens. Yet the more troubling question for orthodox circles in Pakistan was his insistence on knowing the work and religious personality of the Prophet in order to achieve a real understanding of the Qur’anic revelation. Awareness of the historic circumstances in which the Qur’an was revealed did not mean denying its transcendental or meta-historical dimensions. Long before Salman Rushdie’s Satanic Verses pushed the forces of moderate Islam into the defensive, Fazlur Rahman had risen to the occasion and suggested a possible way to bring Muslims into line with the substantive and not just the external teachings of their faith. He had wanted to ensure that the Qur’anic revelation was not lost in the shadows as a result of battle between the stalwarts of “modernity” and guardians of “tradition.” With this in view he had formulated the theory of the “double movement.” The first movement entails studying the moral and social context of the society in which the Prophet lived, both in its restrictive and expansive dimensions, and in which the Qur’an was first revealed. Such a historical and analytical enterprise would establish the original meaning of the revelation and help in crafting a coherent vision of the Qur’anic narrative. Rather than take verses out of context in an ad hoc manner—as modernists and traditionalists alike are wont to do—Rahman’s method tried throwing light on the general and systematic principles and values underlying various Qur’anic injunctions. The second movement required applying those general and systematic values and principles to the contemporary context.58

CONCLUDING REMARKS In the absence of state support, such creative endeavors as are needed to reconcile an Islamic identity with the requirements of a modern nation-state

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have been conspicuous by their absence. It proved easier to adapt the colonial state to govern the newly constructed nation-state than to turn it into a vehicle to attain the Islamic ideals of equality, solidarity, and freedom. Over six decades after independence, Iqbal’s equation of Islam and civil society has been lost sight of in the litany of confusions surrounding conceptions of national identity and state sovereignty, religious and secular space, as well as spiritual and temporal life. For all the talk about its religious ideology and the absence of any formal separation between the state and civil society, Pakistan has singularly failed to achieve the key ideational principles of Islam. Iqbal had suggested that an elected parliament should exercise the right of ijtihad, since this would ensure that the ijma, or the consensus of the community, would be based on democratic principles. Paying lip service to Islam, a succession of “secular” ruling configurations during the first three decades after independence mortgaged Islam to the religious divines. Though internally divided and repeatedly shunned by the electorate, the religious elements manipulated the gap between the theory and practice of Pakistan’s Islamic identity to become a veritable supra-parliament in matters to do with religion. The opportunity for Maudoodi’s Jamaat-i-Islami and other conservative ideologues came when General Zia-ul-Haq (1977–1988) embarked upon his so-called Islamization policies in the 1980s. Changing the motto of the Pakistan army to “Islam, Piety and Jihad,” it signaled a decisive break with the earlier managers of the state, who thought it sufficient to mollify the religious lobby with periodic displays of Islamic rectitude. Jinnah, the architect of Pakistan, had gone to the extent of saying that religion was of no concern to the state; all citizens would have an equal footing with freedom to practice their creeds. In the dramatically altered circumstances following the Iranian revolution and the Soviet invasion of Afghanistan, Pakistan’s military dictator had no qualms about introducing a series of wildly discriminatory legal measures targeting women and minorities in the name of Islam. This era marked a departure from the well-established colonial pattern of confining the legal discourses of Islam to the personal domain of marriage, divorce, guardianship, and inheritance. In the 1970s and 1980s, Zia’s tinkering with the colonial legal system that Pakistan had retained largely unchanged created parallel systems of jurisprudence and legal redress whose main contribution was to complicate and confuse the already inadequate mechanisms of assuring civil and criminal justice. Self-appointed ideologues of religion with precious little knowledge of Islamic learning justified the innovations by proclaiming that the disjunction between the ideological pretensions of the state and its colonial structures on the one hand, and the not-so-Islamic basis of civil society in Pakistan on the other, was due to the inadequate application of the principal tenets of the faith as defined by them. But the budding relationship between

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Maudoodi’s Jamaat-i-Islami and the military regime became unsustainable once Zia embarked on a policy of suspending political activities and postponing elections indefinitely. The regime’s implementation of the punitive aspects of Islamic law as opposed to its social-welfare-oriented functions was an embarrassment for a party looking for ways to broaden its limited social base. Maudoodi had always argued that Islamic penalties against theft, murder, and immoral behavior, which the Zia regime had opted to enforce, were legitimate only in a context where the ideal Islamic state had created a just and equitable social order. The gap between theory and practice was not easy to bridge. Under Zia, it was the authoritarian rather than the democratic aspects of Islam that found their most effective expression. Instead of a civil society where the forces of moderation could effectively assert themselves, Pakistan witnessed the burgeoning of madrassas geared to promoting sectarian hatred and a jihadi culture. The process was difficult to reverse once the Pakistan army, left in the lurch after the end of the cold war by its erstwhile patron the United States of America, thought its interests lay in a security doctrine that entailed supporting jihad in neighboring territories like Afghanistan and Kashmir. Most of the madrassas that provided recruits for the state-sponsored jihadi outfits have scarcely modified the orthodox curriculum based on the Waliullah or the Nizami59 models of Muslim education in the eighteenth century. The contempt for all secular and rational forms of knowledge has turned madrassas into production factories for a lethal kind of religious bigotry. Pitched battles between militant bands of Sunnis and Shias as well as Deobandis and Barelvis are being fought out against the backdrop of a parallel arms-and-drugs economy encouraged, if not actually nurtured, by the state’s intelligence agencies. This has severely constricted the space for the emergence of democratic institutions that can give expression to Islamic values of justice and equity, readily touted at the level of popular discourse but as yet hopelessly unable to permit the citizenry, jointly and severally, to resist the ideational and structural moorings of an authoritarian postcolonial state or check the deepening polarization, crime, and violence spawning ever larger segments of civil society. Pakistanis in their serried ranks desperately need to build a civil society released from the clutches of the ulema and the prison of a colonially defined domestic or private sphere to allow citizens, individually and collectively, to reclaim public space and orchestrate movements for citizenship rights against an autocratic state structure. If they are to make something of their Islamic values, of their iman, or religion as personal faith, Pakistanis, individually and collectively, will have to rethink themselves anew. Only by rejecting the misrepresentations of self-appointed votaries of an Islamic moral order for whom the expediency of religion as difference has come to replace the virtues of religion as faith can they hope to reconstruct a

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religious worldview compatible with their democratic aspirations. Islam is neither exclusionary, bigoted, nor punitive and limited to the self-serving interpretations of the ulema; it is inclusive of the entire field of the political, economic, and social rights of citizenship. Until that realization dawns on them, the ideal Islamic state will remain a distant dream, a weapon to be deployed by the ulema to browbeat opponents and, when necessary, coaxing the state into accepting their interpretations of the sharia. Muslims with moderate, if not always liberal, leanings have tried keeping the ulema at bay by reiterating the founder of Pakistan’s view that religion had nothing to do with the state. Quite apart from the fact that this has not disassociated the state from religion, such an attitude has meant leaving the domain of religion to the ulema, to the serious detriment of their own legitimacy. As the public face of Islam becomes increasingly tarnished by extremist interpretations and violent activities, moderate opinion not only in Pakistan but the world over has small choice but to try and recover the space from the religious ideologues for whom it is a means to both personal and corporate power. Unceasing intellectual effort and political will by those at the helm of state affairs alone can help steer the public discourse on Islam away from the dead end of hatred and violence and pull Muslim societies out of the shadows of modernity into the full glare of an enlightened understanding of Islam’s message of equity, justice, and peace.

NOTES 1. Ayesha Jalal, Self and Sovereignty: Individual and Community in South Asian Islam (London/New York: Routledge, 2000). 2. Aziz al-Azmeh, Muslim Kingship: Power and the Sacred in Muslim, Christian and Pagan Polities (London: I. B. Taurus), 113. 3. Ann Lambton, State and Government in Medieval Islam (Oxford: Oxford University Press, 1981), xiv. 4. Azmeh, Muslim Kingship, chs. 1 and 2. 5. Lambton, State and Government in Medieval Islam, xvi. 6. Lambton, State and Government in Medieval Islam, xvi. 7. Quotation from J. N. D. Anderson, “The Nature and Sources of Islamic Law,” paper given at the South Asia Seminar, 1966–1967, University of Pennsylvania, 81–84, 88–91, 93–94. 8. Azmeh, Muslim Kingship, 98. 9. Fazlur Rahman, Islam and Modernity: Transformation of an Intellectual Tradition (Chicago: University of Chicago Press, 1982), 30. 10. Azmeh, Muslim Kingship, 100–101. 11. Eric Winkel, Islam and the Living Law: The Ibn Al-Arabi Approach (Karachi, Pakistan: Oxford University Press, 1997), 3–9. 12. Azmeh, Muslim Kingship, 113. 13. Rahman, Islam and Modernity, 25.

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14. Muhammad Iqbal, Reconstruction of Religious Thought in Islam (reprinted Lahore: Sang-e-Meel, 1996), 147–48. 15. See Annemarie Schimmel, Islam in the Indian Subcontinent (Leiden: E. J. Brill, 1980), and Aziz Ahmad, Studies in Islamic Culture in the Indian Environment (Delhi, India: Oxford University Press, 1999). 16. See Muhammad Basheer Ahmad, The Administration of Justice in Mughal India (Aligarh, India: Historical Research Institute, 1941), and Wahed Husain, Administration of Justice During the Muslim Rule in India (Calcutta, India: The Calcutta University Press, 1934). 17. Cited in E. J. Rosenthal, Islam in the Modern National State (Cambridge: Cambridge University Press, 1965), 185. 18. Muhammad al-Ghazali, The Socio-Political Thought of Shah Wali Allah (Islamabad, Pakistan: International Institute of Islamic Thought and Islamic Research Institute, 2001), 27. 19. Marcia K. Hermansen, trans., The Conclusive Argument from God: Shah Wali Allah of Delhi’s Hujjat Allal al-Baligha (Leiden: E. J. Brill, 1996), 263–64. 20. The term has no English equivalent and can best be defined as “stages of human societal development.” 21. Shah Waliullah, Al-Badar al-Bazagha, Urdu trans. Qazi Mujibur Rahman, (Lahore, Pakistan: n.d.), 56. 22. Waliullah, Al-Badar al-Bazagha, 29. Also see Hermensen, Hujjat Allal al-Baligha, 115–146. 23. Waliullah, Al-Badar al-Bazagha, 91. 24. Waliullah, Al-Badar al-Bazagha, 211. 25. Waliullah, Al-Badar al-Bazagha, 344. 26. Waliullah, Al-Badar al-Bazagha, 345. 27. Rahman, Islam and Modernity, 32. 28. Fazlur Rahman, Revival and Reform in Islam: A Study of Islamic Fundamentalism, edited with an introduction by Ebrahim Moosa (Oxford: Oneworld, 2000), 203. 29. Rahman, Revival and Reform in Islam, 203. 30. Iqbal, Reconstruction of Religious Thought in Islam, 136. 31. Iqbal, Reconstruction of Religious Thought in Islam, 144. 32. Iqbal, Reconstruction of Religious Thought in Islam, 133. 33. Iqbal, Reconstruction of Religious Thought in Islam, 136. 34. Iqbal, Reconstruction of Religious Thought in Islam, 146. 35. Iqbal, Reconstruction of Religious Thought in Islam, 136. 36. Iqbal, Reconstruction of Religious Thought in Islam, 152. 37. Iqbal, Reconstruction of Religious Thought in Islam, 142 38. Iqbal, Reconstruction of Religious Thought in Islam, 129. 39. Iqbal, Reconstruction of Religious Thought in Islam, 130. 40. Iqbal, Reconstruction of Religious Thought in Islam, 138. 41. Muhammad Iqbal’s presidential address to the All-India Muslim League, Allahabad, December 1930, in Syed Sharifuddin Pirzada, ed., Foundations of Pakistan: All-India Muslim League documents, 1906–1947, 3 vols. (Karachi, Pakistan: National Publ. House, 1970), vol. 2:156–57. 42. Muhammad Iqbal’s statement on Islam and nationalism in response to a statement by Maulana Husain Ahmad Madni, published in Ehsan, March 9, 1938,

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cited in Latif Ahmed Sherwani, Speeches and Statements of Iqbal, 3rd edition (Lahore, Pakistan: Iqbal Academy, 1977), 252–55. 43. William Cantwell Smith tried arguing long ago that the distinction was important enough to justify dispensing with the very term “religion,” The Meaning and End of Religion: A New Approach to the Religious Traditions of Mankind (New York: Macmillan Company, 1962/63). 44. Iqbal’s statement on Islam and nationalism in Sherwani, Speeches and Statements of Iqbal, 262. 45. Cited in Jalal, Self and Sovereignty, 175. 46. Iqbal, Reconstruction of Religious Thought in Islam, 157. 47. Cited in Jalal, Self and Sovereignty, 455. 48. Cited in Jalal, Self and Sovereignty, 455. 49. Cited in Jalal, Self and Sovereignty, 455. 50. Abul Ala Maudoodi, Tajdid wa Ihya-i-Din, 9th edition (Lahore, Pakistan: Islamic Publishers Limited, 1966), 34fn. 51. Seyyed Vali Reza Nasr, Mawdudi and the Making of Islamic Revivalism (New York/Oxford: Oxford University Press, 1996), 80. 52. Nasr, Mawdudi and the Making of Islamic Revivalism. For a good summary of Maudoodi’s thought on the Islamic state, see Rosenthal, Islam in the Modern National State, 137–53. 53. A term used with reference to pre-Islamic Arabia but one Maudoodi used broadly to include anything not in conformity with his conception of Islam. 54. Abul Ala Maudoodi, Islami Nizam aur Maghribi La Dinyat, 12th edition (Lahore, Pakistan: Islamic Publishers Ltd., 1974). 55. Cited in Ayesha Jalal, The State of Martial Rule: the Origins of Pakistan’s Political Economy of Defence (Cambridge: Cambridge University Press, 1990), 285. 56. Jalal, The State of Martial Rule, 285. 57. Rosenthal, Islam in the Modern National State, 126. 58. Rahman, Islam and Modernity, 5–10. 59. The curriculum was developed by Mulla Nizam al-Din (d.1748) of the Farangi Mahal in Lucknow in the early eighteenth century. In keeping with Muslim curricula during the Middle Ages, it was based on both the revealed and the rational sciences. With an equal emphasis on comprehension and learning by rote, it aimed at preparing students for government employment.

12 A Constitutional Analysis of the Secularization of the Tibetan Diaspora: The Role of the Dalai Lama Lobsang Sangay

This chapter examines the Dalai Lama’s efforts to “secularize” Tibetan democratic constitutionalism. The basic premise of democratic constitutionalism is that the leader of the nation or the government should be elected by the people. At first glance, the Dalai Lama’s place in the Tibetan political world would seem to violate the ruling premises of liberal democracy, for his leadership is not based on election but on a formula of succession articulated by rules shaped by Tibetan Buddhism. In this context, the Dalai Lama as the leader of the Tibetan government gives the impression less of a democratic leader than of a theocrat. The separation of church and state can be crossed only if the Dalai Lama replaces himself by a democratically elected leader. What absolute ruler would countenance that possibility? In point of fact, however, the secularization effort does include separating the institution of the Dalai Lama from the Tibetan polity. Complicating this effort is the fact that the devoutly religious Tibetan Diaspora, despite its dislike for theocracy, looks upon the Dalai Lama as its beacon of hope, national unity, and salvation. This chapter examines a uniquely Tibetan approach to finding a “middle way” through this dilemma, a species of secularism articulated in the concept chos-lug-rimey, which allows the institutional separation of church and state but not the spiritual separation of Buddhism from politics. Chos-lug-rimey means, on the one hand, an end of Buddhist institutional domination over the state based on the religious authority of such agencies as the office of the Dalai Lama, the monasteries, and the influence of other lamas. At the same time, it not only encourages politicians, state leaders, and government officials practice their own devotional regimens, it constitutionally welcomes their spiritual guidance in affairs of state, particularly in urging policies of peace and nonviolence. 291

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Chos-lug-rimey distinguishes between religion’s institutional and spiritual aspects, advocating ending the former’s influence while embracing the latter. Yet although segregating institutional from spiritual domains may be easy to state theoretically, in practice they quickly begin to overlap and cause tension. This chapter will examine the complex and perhaps even contradictory conception of chos-lug-rimey through a four-part discussion. The first presents a brief comparative historical analysis of the place of secularism in Western liberal philosophy. The second examines the debate over the terms “chos-sigsung-drel” (theocracy) and “chos-lug-rimey,” showing that the role played by Buddhism in the traditional Tibetan state was excessive, and illuminating why many Tibetans now wish to decrease, if not end, the role of Buddhist monasteries in diasporic governance. Perhaps ironically, they intend to do this by imitating and adopting a model of the liberal state. In addition, it investigates what the constitutional provision calling for “renunciation of violence as a foreign policy” entails both historically and presently within the diasporic freedom movement. The third part will focus mainly on how the Dalai Lama introduced constitutions to initiate the separation of church (which in the Tibetan context refers to monastic institutions) and state, trying both to end the monasteries’ vertical hegemony in the traditional government and to limit their role in the Tibetan government-in-exile. Incrementally but persistently, he has subjected the institution of his office to the laws of the constitution. The fourth part examines the Dalai Lama’s future status. Will he replace himself entirely by a democratically elected leader who would rule over the exile and, in the future, a free Tibet? Alternatively, might it be possible to have a compound institutional framework featuring dual spiritual and political legitimacy (i.e., the Dalai Lama remains as the government’s moral and spiritual leader while a democratically elected political leader wields effective political power)? These four issues will be analyzed by examining three key documents: the “Constitution of Tibet” (1963), the “Charter of the Tibetans-in-Exile” (1991), and the “Guidelines on Future Tibet’s Constitution” (1992).

PART I: THE THEORETICAL AND COMPARATIVE STUDY OF SECULARISM Secularism, according to influential political philosopher John Rawls, is the complete separation between church and state, the ideal arrangement for the liberal state. As he famously puts it, the goal is to “take the truths of religion off the political agenda.”1 The Rawlsian idea of secularism reflects a position that can be traced back to Western antiquity, when Socrates and his disciple Plato challenged

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the concept of “Divine King as dictated by God,” arguing instead that “faith and superstition” be replaced by “reason and rationality.” It builds on a longstanding Western tradition of deriving political legitimacy from human, not divine, sources. Critiquing Sir Robert Filmer’s argument that kings rule by divine right inherited from Adam, John Locke stated that “all government is limited in its powers and exists only by the consent of the governed . . . in essence, all men are born free.”2 Similarly, Jean-Jacques Rousseau stated that “Man is born free; and everywhere he is in chains.”3 Both followed Thomas Hobbes, who held that a state is sovereign and subservient to none, including God. Shifting the primacy from the state to the individual, philosophers such as James Mill,4 and his son John Stuart Mill,5 theorized that the role of the state was to protect the individual and his or her interests, hence sovereignty lay with the “will of the people.” Departing from the concept of a king ruling by divine right, power, liberalism vested ultimate sovereignty over the state not with God but the people. For thinkers like Rawls, it follows that the state needs no theological definition and that it should not involve itself in religious matters (except to protect an individual’s right to practice his or her own beliefs). Rawls’s preference for secularism and his disdain for theological reflection about the state rest on two assertions: theology tends to express propositions as doctrinal absolutes, and history records the enormous toll on human happiness wreaked by conflicts in the name of religion. One can, however, challenge these contentions. History is full of examples of secular ideologies or norms both being absolutized—sovereignty, the state, and law have all been regarded as given, unchallengeable facts—and fostering horrific conflicts. Whatever the devastation brought about by wars of religion, hostilities instigated by secular ideologies like Nazism, fascism, colonialism, communism, and, to some extent, capitalism have proved even more lethal. One might also question the assertions by reversing them: Has theology always acted to curtail citizens’ freedom and liberty? Have secular ideologies always guaranteed them? A brief empirical survey suggests that secularism’s alleged superiority as a guarantor of human freedom within states is far from clear. According to the “Freedom House Index,”6 secular states like China, Cuba, and North Korea have lower freedom ratings than nations with constitutionally declared state churches like Denmark, Sweden, and Outer Mongolia, though countries like Iran and Burma fare less well. The proposition that religion is one of the primary causes of ethnic conflicts appears valid for places like Northern Ireland, Israel/Palestine, Kashmir, and Sri Lanka. At the same time, however, religion’s embrace of democracy and freedom are apparent in the assault on the Marcos regime in the Philippines and resistance movements in Sri Lanka and Vietnam, not to mention the Tibetan freedom movement. Moreover, churches played an important

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role in bringing down communist rule in eastern European countries, most prominently in Poland and the Baltic States, and in the demise of South African apartheid. Collectively, these examples demonstrate that religion has been a double-edged sword, alternately suppressing or promoting freedom and liberty depending on place and circumstances. Moreover, even if one wishes to countenance Rawls’s model of the secular state as an ideal, it is hard to find such a thing in fact. In the modern world, religion enters into complex relationships with a variety of governmental arrangements. The United States, many claim, has constitutionalized the separation of church and state, but that contention may not be valid, and even if it is, religious groups play an active political role, as current debates about evolution, abortion, gay marriage, and stem cells suggest.7 In Germany, a technically secular state, the federal government collects taxes and redistributes them among churches according to each citizen’s preferences. Constitutionally recognized churches are present in both democratic states—Denmark, Sweden, Iceland, and Norway (the Evangelical Lutheran Church); Italy (the Roman Catholic Church); Thailand, Cambodia, and Sri Lanka (Theravada Buddhism); Bhutan and Outer Mongolia (Mahayana Buddhism); Nepal (Hinduism); and England (the Church of England)—and nondemocratic ones—Saudi Arabia, Pakistan, Indonesia, Algeria (Islam); and Burma (Buddhism). The relationship between the church and state can take complex forms even within a single one of these states, not to mention that it may operate in either democratic or nondemocratic contexts. Whatever the case, the arrangement is usually sufficiently complex that stereotypes about how they interact do not begin to convey facts on the ground accurately. One cannot, again, easily find an example of Rawls’s perfectly secular state in operation, and, in consequence, may wonder whether a more productive approach to thinking about the relationship between religion and the state may be not how to segregate them (which seems impossible anyway) but how to maintain a fine balance between them. The Tibetan Diaspora illustrates the complex relationship between church and state, and provides a pregnant example of how an emerging democratic polity might negotiate them.

PART II: CONSTITUTIONAL DEBATE ON CHOS-SING-SUNG-DREL The secularization effort of the Tibetan Diaspora challenges the Rawlsian idea that the ideal liberal state necessitates excluding the church from all influence. It involves a struggle to separate church and state institutionally while trying to incorporate devout spiritual sentiments into political life.

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The Tibetan secularization movement has had a long, arduous journey. The Dalai Lama took the first significant step in 1963, when he drafted a constitution for a future Tibet. The constitution was symbolically recognized as the source of all power and legitimacy in Tibet, and it marked a shift of direction in the mindset of the Tibetan Diaspora. Nonetheless, it enshrined the principle of chos-sig-sung-drel (the interpenetration of religion and politics) in Article 2, which stated that “Tibet shall be a unitary democratic state, founded upon the principles laid down by the Lord Buddha.”8 In essence, Tibet was declared a Buddhist state. The preamble reflected the historical reality that Buddhism has been an inseparable part of Tibetan polity, civilization, and history. The increasing influence of Buddhism in every aspect of Tibetan lives had made Tibet one of the few remaining theocratic states in the twentieth century until 1959, when it was invaded and occupied by Communist China. “Theocracy” here is defined as “a state ruled by a leader whose authority and legitimacy rest on religious claims.” Some might dispute the identification of Tibet as a theocracy on etymological grounds: since “theo” can connote “God the creator,” and since some scholars label Buddhism an atheistic religion that does not hold such a transcendental concept, Tibet cannot be “theocratic,” since the ultimate source of religious authority is not monotheism’s single sovereign Lord. “Theocracy” as defined above does, however, have resonance for the Tibetan example, where it refers to a state governed by the institution of the Dalai Lama, whose political foundation rests on the spiritual claims that he is the manifestation of Avaloketeshvara (Buddha of Compassion) and the mythical father figure of the Tibetan people and the nation. Tibet before the Chinese occupation in 1959 did not have a constitution. However, since the dawn of its recorded history, which began in the eighth century with the reign of King Trisung Deytsen, kings have formulated and followed a legal system based on the Ten Divine Virtues, the Sixteen Moral Rules, and the Thirteen Codes to prevent criminal activities. These prescriptions all express essentially Buddhist principles.9 Prior to 1951, according to Rebecca Redwood French, lay Tibetans discerned “no clear divisions between religion, politics, administration, and law; instead there were inviolable connections between religion and the state, as both were alleged to be based on teachings of the Buddha.”10 The connection between the two is demonstrated by the integral role that monasteries have played in the Tibetan polity. Each of the four Buddhist sects—Nyingma (Red hat), Kagyu (Black hat), Sakya (White hat), and Gelug (Yellow hat)—as well as the indigenous religion, Bon, has influenced Tibet’s sociopolitical system, their impacts vacillating over time. The blending of church and state began in the thirteenth century with the establishment of theocratic rule by Choegyal Phagpa, head of the Sakya sect. During this era, which witnessed the foundation of governance by

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lamas, Tibet was consolidated and ruled as a nation. In 1642, theocracy was further entrenched when the Fifth Dalai Lama, with the military aid of Mongol Chieftain Gushri Khan, defeated his potential nemeses, especially the Kagyu sects, and ascended as the first Gelug king of Tibet. From then on, with few exceptions, only monks from his sect could become governmental officials. Other sects resented the Gelug sect’s dominance, occasioning sporadic battles and bloodshed. To avoid repeating history, the Dalai Lama in 1960 urged that “the old system of monastic estates, aristocratic estates, the gentry, the commoners, etc. must be reformed completely.” Jamyang Norbu, a critic of Tibetan society, recalls that “Though people’s faith in Buddhism had not diminished, it was felt that the ultra-conservatism of the church and the weakness of the aristocracy had been largely responsible for the disaster that had befallen Tibet. The Dalai Lama himself acknowledged how much Buddhism in Tibet had become mired in arid rituals and ceremonies, and set about trying to put his house in order. Symbolic of his intent was the design of the new temple in Dharamsala, which was simple to the point of starkness.”11 The checkered history of religion’s role in the Tibetan state bothered the Dalai Lama. The impetus for him to look into secularism emanated mainly from his reading and understanding of Tibet’s internal historical problems, more specifically, the reigns of the Dalai Lamas since 1642. While reading biographies of previous Dalai Lamas in the 1970s, he observed Tibetan society’s recurring problems: fierce sectarianism, infighting among regents, and the premature deaths of several Dalai Lamas.12 He became convinced that: there should be a clear-cut separation between the church and state. [ . . . ] It is not right for a religious institution to hold political power. To say the least, this would corrupt the institution itself. The institution’s image would be smeared. Moreover, it is unbecoming for a religious institution to hold power. Now, in a secular State, political power is not the monopoly of any particular religion. A secular State does not give much importance to religion. It does not discriminate between different religious beliefs. Therefore, secularism seems to be very appropriate for us.13

As a result, the Dalai Lama initiated a policy of nonsectarianism modeled after the Fifth Dalai Lama’s religious policy of “eclecticism.”14 In practical terms, the Dalai Lama’s view was distinct and different from conventional understandings of secularism. In the draft Charter of 1991, he proposed a concept called rimey,15 which asserted that a believer in Tibet might follow any tradition of Buddhism or any other religion, and that the government would not favor a particular religious group, most obviously (in the Tibetan context) the Lhasa-based Gelug monasteries.16 This definition of rimey differs from Rawlsian notions of secularism, however, in that

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it does not preclude the government’s operating openly under specifically religious values. The Dalai Lama took this position because, as he puts it, “if the politician or the leader was a believer (in religion) at his personal level, if he had moral conscience, if he feared sinful action, then he would be honest, kind-hearted, and altruistic.”17 Under the Dalai Lama’s specific direction, this notion of “secularism”—rimey—was included in the draft Charter of 1991. The Dalai Lama’s interpretation of rimey did not compel anything like unanimity when the complete draft came up for debate in the Tibetan Assembly (Chitue, or parliament). Its advocates18 asserted that “the secular system is present in all democracies and would mean the equality of all religions. It is not only Tibetan Buddhism that has to be protected by the government. We have some Muslims, Christians, and in the future we might have many more of the faiths so equality of government protection for all must be there. We must treat all religions and sects equally and honestly.”19 Against this party, opponents—led, not surprisingly, by a monk, Tsering Phuntsok—asserted the desirability of chos-sig-sung-drel, advancing two major arguments: 1. Buddhism is an integral part of our life; whatever we do in life we consult divinations and perform religious services for its success. Even the exile government performs trinchols [offerings] and asks for advice from the Two Red and Black Protectoresses or Buddhist deities for major activities. If we have secular system, what will happen to our official oracles? Where are we going to keep them? 2. When making any decisions, if leaders have to think about Buddhist philosophy and karma, there is less chance of corruption, unlike the practice in other countries that are solely guided by politics. Those who believe in religion will be motivated to engage in good activities because his religion tells him that he will earn merits if he does such things. Since China does not have religion, there is corruption, dishonesty, and oppression.20 Supporters of chos-sig-sung-drel saw no difficulty in seeking advice on state matters from two Buddhist deities, whose directions and prophecies could have major consequences for national policy. For their adversaries, however, such appeals to nonrational powers through mechanisms that would not be open to public inspection seemed problematic. As debate proceeded, seventeen deputies, mostly older delegates representing the four Buddhist sects and Bon, supported language favoring chossig-sung-drel, while six or seven younger deputies supported chos-lug-rimey. Yet though suggested by the Dalai Lama himself and endorsed by Samdhong Rinpoche, then Speaker of the Assembly, the concept of chos-lug-rimey

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failed to win majority support. Half of the deputies either did not vote or remained neutral. In the end, those advocating the interpenetration of church and state prevailed by a narrow majority, and the term chos-sig-sungdrel found its way into the 1991 Charter.21 Even after thirty years of exile, religious conservatism prevailed in the Tibetan parliament. The preface’s first paragraph states that Tibetan people should “preserve their ancient traditions of spiritual and temporal life [chos-sig-sung-drel], unique to the Tibetans, based on the principles of peace and non-violence.”22 Interestingly, the passage uses the term chos to identify not a discrete religion or Buddhism but rather a principle of “non-violence and peace,” understood as a generic goal and principle of all religions. Samdhong Rinpoche has affirmed that chos is inclusive, embracing (and thus respecting) all religions, such as Islam, Hindu, and Christianity. In essence, the preamble interprets chos to signify the principle of “non-violence and peace” based on the ancient traditions of Tibet.23 The Renunciation of War as a Foreign Policy The interpretation of chos as an ancient tradition based on the principle of “non-violence and peace” is most pronounced in Chapter I, Article 6 of the Constitution of 1963, which renounced war as an instrument of foreign policy.24 The complications arising from the attempted implementation of this principle illustrate some of the pros and cons of trying in the Tibetan context to separate the state from the church (i.e., from the control of monastic institutions) while continuing to honor Buddhist philosophy as a basis for political policy and action. The commitment to renounce war was premised on the historical claim that Tibet was and had always been a neutral and nonviolent nation, a contention that warrants substantial qualification. To be sure, Tibet did remain neutral during the First and Second World Wars, in the latter conflict denying the United States a land route to supply its ally, the Kuomintang Nationalist government of China, with arms. Moreover, there is no historical record of Tibet’s having initiated war on any of its neighbors since the tenth century.25 Nevertheless, it can hardly be said that Tibet’s internal politics have been free from bloodshed, often perpetrated by foreign mercenaries. Traditionally, the major monasteries deployed armies of monks or forces drawn from among the Mongols, Manchus, and Nepalis to win sectarian power struggles. In the thirteenth century, both the Sagyapa and Drigungpa sects recruited soldiers from among the Mongol tribes, some of whom burned the Drigung monastery in 1290. Four centuries later, strife between the Gelugpa and Karmapa occasioned the murder of the king of Tsang, the Karmapa sect’s ally, by Oirat Mongols. At the beginning of the eighteenth century, the presence of Dzungar Mongols invited into Tibet by

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the Gelugpa to oppose Lhazang Kahn resulted in persecution of the Nyingmapa sect, the execution of Regent Sangye Gyatso—one of Tibet’s most eminent lay writers—and the expulsion of the Sixth Dalai Lama from his home, not to mention the looting and pillaging that always accompanied Mongol incursions. In 1772, the Ninth Red Hat, Shamarpa, was involved in the Nepali Gurkha invasion of Tibet. Not to be outdone, monks of Tengyeling monastery shielded Chinese nationalist officials and fought against the Tibetan army when Tibet declared itself independent in 1913. Geluk monks from Sera waged violent battles against the Tibetan government to support Regent Reting Rinpoche, who belonged to the monastery.26 It is often touted that conservative monasteries opposed modernizing and strengthening the military wing of the Tibetan government because they believed in nonviolence and in maintaining Tibet’s neutral status. In the early twentieth century, conservative monastics argued against and successfully halted the modernization and expansion of the Tibetan army, which had been modeled after the British military, even though the project was directed by the Thirteenth Dalai Lama. This opposition, though undertaken under the guise of Buddhist principles, was most likely a political calculation on the part of the Gelug monasteries not to strengthen other branches of the government, potential threats to their dominion. Stripped of any real military capacity, Tibet could not defend itself. When the Communist Chinese army invaded, Tibet’s standing army totaled fewer than ten thousand men, a force smaller than the constabularies of major American cities. At the same time, the number of monks and nuns exceeded fifty thousand. There is thus a direct correlation between the pacifistic tendencies of Tibetan monasticism and the nation’s military unpreparedness that resulted in its occupation by the Chinese. The Charter of 1991 cemented the Tibetan national freedom movement’s commitment to renouncing force as an instrument of liberation.27 The Dalai Lama mandated that the struggle would never use violence to achieve the Tibetan people’s freedom. In fact, he threatened that if the movement should ever become violent, he would resign from its leadership. Behind this policy lies the Buddhist philosophy that peace is more durable if the process leading to it is nonviolent; since violence only begets more violence, and since peace won by violence rests on an unsure footing, nonviolence promises the least damage in the short run and the greatest stability in the long run, for it alone can achieve peace without harming either side and break the cycle of retaliation. This policy has shaped the fundamental direction of the national Tibetan freedom movement. Because of the Dalai Lama’s pronouncements, the majority of the Tibetan Diaspora support nonviolence as the means to regain their freedom and homeland. However, an increasing number of youths, frustrated by the lack of tangible results, have come to advocate violence,

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arguing that international law recognizes its legitimacy when exercised in self-defense. They point to the American Revolution, the Allied war effort against Nazi Germany, and resistance across Asia and Africa against European colonialism as instances in which violent means have freed people from oppressors. They note that even Mahatma Gandhi’s championing of nonviolence, the model followed by the Dalai Lama, included sanguinary uprisings launched by Subhas Chandra Bose and other freedom fighters. Finally, they point to the success that resistance movements in Palestine, the Basque Nation, and Northern Ireland have achieved by using violence to focus attention on their causes. The Dalai Lama’s imposition of nonviolent tactics on the Tibetan freedom movement from the top down has disaffected young Tibetans impatient for results. Nevertheless, most Tibetans in the Diaspora still support the strategy of nonviolence, demonstrating Buddhism’s continuing hold. In the internal Tibetan debate over tactics, the means (nonviolence and peace) have subordinated the ends (a free state). Tibetans’ aspiration to return to their homeland as a free people has become subservient to the Buddhist philosophy of nonviolence. Here lies a classic contradiction of not separating religion from politics: religion cannot function as a guiding political philosophy without being translated into national policy, with important ramifications on how such policies may fare. To a minority of Tibetans, according Buddhism such influence over practical decision making amounts to blending church and state. One might further argue along these lines that Buddhism’s unidimensional approach to the problem of creating a free Tibetan state precludes alternative strategies—including violence—that other resistance and national liberation movements have utilized successfully. Yet aligning the Tibetan national freedom movement with Buddhist pacifism has advantages too. The movement’s global appeal rests on its advocating nonviolence and peace as the means of achieving freedom. Respect for Tibetan Buddhism has won popular support from Hollywood celebrities, not to mention prominent world leaders. Lacking natural resources like oil to elicit economic concessions or concentrated constituencies (such as those among the Palestinians and Northern Ireland’s Roman Catholics) to command the world’s interest, the Tibetan freedom movement has won relatively widespread support in the international community (there are some six hundred pro-Tibet student groups in the United States alone) due principally to its advertising the principles of nonviolence. Most importantly, the Dalai Lama’s appeal and his influence as a world statesman is acknowledged everywhere, surely in large measure because he advertizes the power of nonviolence. Nor should one forget that most of the activists in the forefront of organizing demonstrations and risking imprisonment inside Tibet have been monks and nuns steeped in Buddhist values.

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Thus, Buddhism’s impact on the Tibetan state has been mixed. Pacifism facilitated Tibet’s conquest by China, but the credo of nonviolence and ahimsa (peace) has become a rallying cry for Tibetans during this tragic historical moment, winning them enormous international support—albeit no concessions from the Chinese government, yet. The role of Buddhism in Tibetan politics is complex and likely to remain so for some time to come.

PART III: THE SECULARIZATION OF THE DALAI LAMA It is apparent in the debates over chos-lug-rimey and the renunciation of violence as a tactic of national liberation that the Dalai Lama has played a key role in both. In addition, exiled Tibetans widely hold that democratic constitutionalism is a gift from him, a top-down imposition rather than a bottom-up struggle, as is usually the case in emergent democracies. Any survey of Tibetans in the Diaspora would show that the vast majority believe democracy to be a gift from the Dalai Lama. The Tibetan Diaspora thus presents a dramatic paradox: the Dalai Lama, a nonelected leader whose legitimacy as the head of state derives from the Buddhist doctrine of reincarnation, the history of Tibetan politics, and his own personal charisma, has attempted to separate church and state in the constitution of the Tibetan Diaspora in favor of a democratic polity (i.e., a nonelected ecclesiastical leader has offered willingly to replace himself with an elected individual who enjoys neither ecclesiastical, traditional, or charismatic authority). Moreover, the Dalai Lama’s efforts have been opposed by, on the one hand, religious officials (including those of his own sect) who do not want to weaken the monasteries’ longstanding hold on power, and, on the other, by the vast majority of Tibetans, whose respect and love for him far outstrip what they would render to any politician, even one elected through a democratic process in which they participated. Thus, the separation of church and state in the Tibetan constitution can be effected only if the Dalai Lama can succeed in channeling popular veneration for him into approval for deposing him as the head of state. Can the Dalai Lama take the final step to replace himself, thereby separating church and state in a democratic polity? Is he willing to forgo the 360-year-old Ganden Phodrang [palace]? Can a devoutly religious society like Tibet accept such a separation, which involves divorcing the institution of the Dalai Lama from its civic society? At a broader level, should there be a place for Buddhism in the democratic state model that the Dalai Lama has endeavored to introduce? Any discussion of contemporary Tibetan constitution-making runs up against the figure of the Dalai Lama and his extraordinary appeal among his “constituents.” In any election conducted in the Diaspora, he would

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unquestionably receive more than 90 percent of the votes, a figure no other candidate in a free election could reasonably approach. Alert to this support, many Tibetans argue that he already governs by a popular acclaim that is tantamount to his having been chosen by ballot, and that therefore the Tibetan state is functionally if not structurally a democracy. Nevertheless, the Dalai Lama at this moment leads neither a democracy nor a secular state—his “approval rating” notwithstanding—because his power is ultimately based on an “inherited” religious authority. Any transformation of the Tibetan state must come to grips with both the office of the Dalai Lama and the remarkable popularity of the current incumbent. Understanding the movement to secularize the Tibetan state according to the precepts of clos-sig-riney necessitates analyzing the Dalai Lama’s various roles: human being, religious figure, institutional embodiment, and political leader. Apprehending these distinctions will illuminate the effort to separate monastic institutions from the state without segregating Buddhism from politics. The Grand Oath In December 1960, several thousands of Tibetans journeyed to Bodh Gaya,28 a location reflecting the close nexus between politics and religion in Tibetan society. There, in the midst of pilgrimages and spiritual activities, leaders of the Tibetan Diaspora pledged their loyalty to the Dalai Lama and swore to unify behind his leadership. The language of this oath conveys its importance: We, the undersigned, unanimously take this great inviolable oath of our own free will. His Holiness the Dalai Lama, holder of the entire Buddhist teaching and political power in the Snow Land, makes ceaseless efforts for the perpetuation of the Buddhist religion, from which issue the roots and branches of the welfare and happiness of the entire Samsara. He works unceasingly also for the happiness and prosperity of the people of the three provinces of Tibet. . . . However, we Tibetans have so far failed to unite and serve our nation with a sense of community responsibility. . . . Therefore, we, the entire Tibetan people, express remorse for our past deeds and take an oath to fulfill the deep wishes of His Holiness the Dalai Lama, the All-seeing and Great Caring Being [my emphasis]. We take an oath to give up factional fighting and jealousy and pursuit of personal fame. Instead, we will be united like an iron ball. . . . And never ever will we waver from this decision.29

The document was signed by thirty-three people representing the three traditional provinces of Tibet and four sects of Buddhism (significantly, no one represented the adherents of Bon). The majority of signatories were

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Tibetan government officials and high-ranking lamas of the Gelug sect, symbolically claiming to represent the majority of Tibetans. The first paragraph melds church and state, reaffirming the Dalai Lama as the sovereign head or absolute political leader and spiritual savior to whom all are subservient. The second paragraph acknowledges the lack of unity as the cause for the loss of Tibetans’ nation and freedom. Finally, the signers pledge to end factional fighting and jealousy (between sects, regions, or individuals) and to unite like an “iron ball” in their pursuit of freedom. Given the longstanding historical differences between Tibet’s regions and sects—and the resentments those differences occasioned—this agreement under oath marked a watershed in Tibetan history. A major omission in the document was its failure to mention either the government of Tibet or the exile. Several interpretations for this lacuna suggest themselves. Given their long record of competition, Tibet’s sectarian and regional interests may have found it difficult to submit to a central government-in-exile, so that overlooking it may have seemed politic. A similar explanation points to the historically tense relationship between the aristocrats who dominated the Tibetan government and commoners. The most plausible explanation, however, is that Tibetans conceived their allegiance to the Dalai Lama in personal rather than institutional or political terms. An editorial in the Tibetan Review twenty years after the oath captures those sentiments exactly: [T]he unique feature of this establishment [the government-in-exile] is that it would be difficult to imagine its existence if there were no Dalai Lama . . . as far as the average Tibetan is concerned, the Dalai Lama is the Tibetan government. Individuals who staff the government, even those holding highest offices, are respected by the people only because they are there with the approval of the Dalai Lama.30

Reflecting the intimate ties between church and state in Tibetan thinking, the oath to follow the leadership of the Dalai Lama was foremost a spiritual activity grounded in the Buddhist law of Karma and only then a political act demonstrating fealty to a sovereign. According to Tibetan Buddhist belief, an oath before spiritual deities is considered more binding than a legal contract or legislation, hence violating such an oath amounts to cultivating “negative Karma” and subjects the violator to manifold punishment, not just physically and materially in the present samsaric world but, more dreadfully, in the world thereafter. Politically, the coming together of different sects and regions, despite their long antipathies, demonstrated an unprecedented unity behind the Dalai Lama’s leadership and, for the first time in Tibetan history, the formation of an enlightened nationalism, one forged to challenge Communist China’s rule. Legally, the oath reaffirms the institution of the Dalai Lama as the sovereign or ultimate power of Tibetan people.

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It is also a traditional religious convention that seeks refuge in the Dalai Lama as Tibetans’ only hope for redressing their tragic loss and freeing their homeland. In effect, the church and the state of Tibet were bestowed on the Dalai Lama via the mechanism of the Grand Oath of allegiance and loyalty. The faith and reverence the Tibetan Diaspora displayed towards the institution of the Dalai Lama reflects the influence of Buddhist philosophy and institutions. The Constitutional Reforms of 1963 With the Tibetan people having entrusted themselves to him, the Dalai Lama faced the problem of replacing the old theocratic system of government with one that would both unify the different elements within the Diaspora and at the same time represent it favorably to potential supporters of the struggle to free Tibet. The options for constituting a new system of governance were limited. Replicating the traditional feudal/theocratic system, with its lethargic functionality, systemic corruption, and inegalitarian political culture was unthinkable, as was installing the communist system, given its radical view of religion and the Chinese communists’ destruction of Tibetan culture. What was left was a system that commended itself both pragmatically and ideologically. A model of democratic governance lay close at hand in India, the Tibetan government-in-exile’s host; moreover, adopting such a system would align Tibet with the Western democracies whose support in the United Nations Tibetans wished to cultivate. Motivated by both his own inclinations and by practical politics, the Dalai Lama initiated democratic reforms in exile, beginning with the drafting of a constitution, which Lhading Khenchen Ngawang Dakpa had suggested as far back as 1954. In an effort to separate church and state, the Dalai Lama urged Tibetans to adapt to changing circumstances by adopting an elected parliament whose delegates would represent the various Tibetan settlements in India. The symbolism of this development is important. Whereas in the Grand Oath Tibetans had submitted themselves to the Dalai Lama as head of their church and state, the Dalai Lama’s call for elections amounted, at least technically, to a devolution of some of that power to the people. The Dalai Lama could have appointed the parliament, and the majority of Tibetans would likely not have complained. But by calling for elections, he began to separate his office from the state, in the process loosening the grip on the government that the hereditary aristocrats and the Gelug monasteries had traditionally held. The Dalai Lama assigned nine of the thirteen seats in the parliament to secular representatives and one seat to each of the four Buddhist sects. This complex arrangement was seen as compensating the other sects for the

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Gelug sect’s having dominated the Dalai Lama’s government over the previous 350 years, since the Gelugpa were given only a single seat even though their followers constituted a majority of the Tibetan exiles in India and on that basis might have been entitled to greater representation. Meanwhile, adherents of Bon received no representation, which raised accusations of Gelugpa bias against practitioners of the indigenous religion: The Tibetan Administration at Dharamsala does not understan[d]—or pretend not to—the psychology of the minorities, and paying lip service to the Constitution, it does not care to go an inch out of its way to assuage the fears of minorities and to ensure their interest. Even u[p t]o this day, the Bonpos do not have their representative either in the Council of Religious Affairs or in the Commission of Tibetan People’s Deputies which other sects enjoy.31

The organization of religious institutions was equally problematic. The constitution called for establishing an ecclesiastical council “to administer the affairs of all monasteries and religious institutions in the state” under the Dalai Lama’s direct authority.32 No such body was ever created, but a department of religion was established to look after the welfare of monks and nuns in Indian refugee camps. Technically, the department neither represented any specific sect nor adopted any sectarian philosophy. Nevertheless, the Tibetan government viewed itself as responsible for looking after its monastic community, an important segment of its population. The Department of Religion did not have the power of the traditional Chikyabkhenpo (cabinet of monks), which held a nearmonopoly over monastic affairs. Rather, it was created to look after the displaced religious of all sects, providing them with food and shelter, and, eventually, reestablishing the monasteries. Although the National Assembly created by the constitution was supposed to be an elected body, the Dalai Lama’s power was so overwhelming that in 1963 he “ordained” the constitution in his annual March 10 Address (the equivalent of an American president’s State of the Union speech).33 No one—not Parliament, a special convention, nor the Tibetan people themselves—debated or adopted the constitution, as would have been the case in a truly democratic society.34 When asked why the National Assembly unanimously supported this procedure, representative Gyakpon Kesang Damdul replied without pause, “The Dalai Lama said so.”35 In other words, Tibetans believed that all ideas, inspiration, and initiatives for political reform and constitution drafting had to emanate from, if not be sanctioned by and rooted in, the institution of the Dalai Lama. To diminish his image—not to mention the reality—as the Tibetan state’s all-sovereign power and to replace unyielding adherence to traditional Buddhist beliefs with respect for constitutionally sanctioned law, the Dalai Lama subjected himself to the dictates of the constitution, which included a provi-

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sion for his impeachment. The process was detailed in the language regulating the Council of Regency. Besides exercising executive powers in customary Tibetan fashion, such as in the period before “the reincarnate Dalai Lama becomes of age to assume the powers of his predecessors,” the council of regency was also authorized by Article 36 to assume executive power: when the National Assembly, by majority of two-thirds of its total members in consultation with the Supreme Court, decides that in the highest interests of the State it is imperative that the executive functions of the Dalai Lama shall be exercised by the Council of Regency.36

The Tibetan population at large, however, regarded this provision as revoking the Dalai Lama’s traditional sovereignty. According to Tibetan custom as fortified by Buddhist belief, the Dalai Lama cannot be removed from his political position, neither in this life nor after his death, once his reincarnate self will, upon gaining his majority at age eighteen, assumes kingship over Tibet. The institution of the Dalai Lama is a permanent office established not merely—even primarily—by political means but first of all by Buddhist doctrine and Tibetan history. To Tibetans, the Dalai Lama stands at the heart and center of their belief. To impeach him would be sacrilegious. The controversy over the impeachment clause became so emotionally charged that Narkyid Ngawang Thondup, the document’s translator, was accused of being a communist (i.e., a traitor), and so-called “public leaders” threatened to cut off his hand for drafting the poisonous passage.37 A flood of letters to the Dalai Lama and his cabinet objected to it. To devoutly religious Tibetans, the proposal went beyond their wildest imaginings. Coming on the heels of the Chinese invasion, the traumatic loss of their homeland, and their new status as refugees, it seemed another in a series of catastrophes. The majority of the Tibetan exile community fiercely protested, their actions fueled largely by their abiding faith in and loyalty to the Dalai Lama, to be sure, but also because a few members of the elite, whose political eminence depended on maintaining the status quo and who consequently feared that undermining the Dalai Lama’s power would reduce their own, fanned popular fears. Others feared intrusion by Communist China.38 But the clause was kept in the constitution at the explicit order of the Dalai Lama.39 The impeachment provision implied that the constitution, not the institution of the Dalai Lama, was the source and legitimacy of the Tibetan government-in-exile. It embodied the liberal democratic premise that law, not God, is the source of state rule and power. And it was a radical departure from traditional Tibetan convention, which constructed the Dalai Lama as a permanent, all-knowing philosopher king. Most Tibetans, however, felt far more uncomfortable with the old ways. As Jamyang Norbu has noted, “In spite of enthusiasm [for democracy],

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there was a pitiful dearth of knowledge about democracy, or for that matter any political system other than the traditional.”40 A member of the first assembly, Kesang Damdul, acknowledged that “hardly anyone understood what democracy meant, but we endorsed the constitution because the Dalai Lama said so,” indication that the democratic impulse in Tibetan politics came from the highest stations of power rather than from popular protest. Despite attempts to delineate the institution of the Dalai Lama and the Tibetan government-in-exile by drafting the constitution, embodying an elected parliament, and introducing the possibility (however remote) of his impeachment, the Dalai Lama nevertheless continued to dominate church and state. His power exceeded that even of hereditary monarchs in that its legitimacy rested on religious as well as secular political sources. Invested with such executive powers as complete authority to appoint and dismiss the Kashag (cabinet), dissolve the National Assembly, promulgate ordinances, and appoint judges to the Supreme Court, he retained complete control over the government, essentially unchecked by either the legislative or judicial branches.41 The Charter of 1991 In the Constitution of 1963, the Dalai Lama envisioned the future Tibet as a Buddhist Country with a Buddhist government. Accordingly, the constitution mandated the teachings of Buddha as its guiding principles, retained the traditional power of the Dalai Lama, and even required the regent to be a monk. He was, as he has recently acknowledged, ignorant of secular political philosophies: “At that time [the 1960s], we did not take much interest in secularism, we did not even know about it.”42 As time progressed, however, his understanding of secularism evolved. He ascribed the change to a “transformation in our mental environment, which, in turn, was the result of our exposure to the outside world.”43 Years later, reflecting on the separation of church and state, he commented: Having become refugees, and specially as we have to respond to Chinese challenges on international platforms, we should not hold on to the old tradition, like a dog holding onto a bone. Rather, even if we are not able to give satisfactory verbal explanations, we should depict [them] through our actions (when we want). Therefore after we framed the main features of our constitution we circulated it among the Tibetan community. People from many of the Tibetan settlements expressed their discomfort and inability to accept this by saying that “It will not do if the Dalai Lama’s prerogatives are affected.” However, unless the majority has the right to alter the powers of the leader, which is the main feature of democracy, democratic identity will be lost. As this clause formed an essential feature of democracy it was retained.44

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In 1990, the Dalai Lama directed the National Assembly to charge an ad hoc committee with drafting a new constitution.45 The new Charter continued the shift of power from the Dalai Lama to the Chitue, at least technically. In contrast to the Constitution of 1963, which was “ordained” by the Dalai Lama, the Charter of 1991 was “adopted” by the Chitue and “assented” to by the Dalai Lama.46 The Charter provided more checks on the executive than did the constitution. For example, whereas the constitution allowed the Dalai Lama to dissolve the Kashag and the National Assembly unilaterally, the Charter permitted him to dismiss the Kashag only with the approval of a two-thirds majority of the Tibetan Assembly or “in cases of emergency,”47 and to prorogue the Assembly itself only after having consulted with the Kashag, the chief Tibetan justice commissioner, and both the Assembly’s speaker and deputy speaker.48 Yet despite such changes, critics charged that the Dalai Lama’s powers under the Charter remain substantially unchanged. If he wants to dissolve the Chitue and force the Kashag to resign, he can do so—as indeed he did on May 11, 1990 (though one should also note that in this instance he acted to allow a popular election of new officials). Whatever the criticisms from a few intellectuals and some younger Tibetans, most Tibetans-in-exile are content with the status quo. The situation, then, is deeply paradoxical. The Dalai Lama, a nonelected leader whose legitimacy derives from Buddhist doctrine, history, and charisma, wishes to democratize the government—against the preferences of his own people, who desire no diminution of his authority. Moreover, in the absence of any revolutionary movement to overthrow him—something virtually no Tibetan could even conceive, much less try to carry out—the Tibetan government can be fully democratized only if the Dalai Lama deposes himself to force the installation of a popularly elected leader. The Dalai Lama seems acutely aware of this predicament: The institution of the Dalai Lama as a religious institution cannot also be the political leader of Tibet. This is not right at all. This is not right religiously. Being a lama [reincarnate monk], people find it quite hard to criticize me. [ . . . ] Even if I submit myself for election to this post, people will not oppose me simply because I am the Dalai Lama. [ . . . ] It all comes to the fact that the Dalai Lama institution running the government should come to an end. This is very important. If we continue to have this system, then there will never be democracy. . . . If we have to live in India for sometime, then before I die we should have a leader elected by the Tibetans and not someone belonging to the Dalai Lama institution or another lama [reincarnate lama].49

The Dalai Lama presciently observes that Tibetans must prepare during his lifetime for what will follow, for as the situation now exists, they have not prepared for his absence. Should something happen to him, they have no

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plans to guarantee the government’s stability. He is right to warn that it is dangerous to put the entire responsibility for Tibet’s survival on the being of one individual. As an indication of his willingness to address such an eventuality, the Dalai Lama in both his March 10 speech of 2001 and his address to the Chitue that same year proposed changing the Charter to allow for the direct election of the Kalon Tripa (prime minister).50 An election soon followed, and, on September 5, 2001, the newly elected Kalon Tripa, Samdhong Rinpoche, took office. He and his Kashag51 are responsible for and handle day-to-day executive matters, consulting the Dalai Lama only on highly important issues. In assessing Buddhism’s role in the emerging Tibetan state, it is significant to note that Samdhong Rinpoche is not only a reincarnate lama but one from the same Gelug sect as the Dalai Lama. With Gelugpa holding the two highest executive positions, one might be tempted to regard the new government as replicating the old sectarian hegemony. Against this conclusion, however, one should observe that Samdhong Rinpoche, who is also a Gandhian philosopher, has consistently and ardently advocated secularism (chos-lug-rimey) and the constitutionally based rule of law. The fact that the prime minister received 85 percent of the votes, drawing support from both the younger, more secularized elements of Tibetan society as well as their more religious, conservative elders suggests how traditional spiritual aspirations and modern democratic proclivities play out in the Tibetan Diaspora. One might interpret Samdhong Rinpoche’s election as evidence that Tibetans overall are becoming more comfortable with the separation of church and state but want it implemented by a relatively secularized monk to help smooth the transition.52 Transferring the Tibetan government’s legitimacy in the eyes of its citizens from a system in which it inheres in the person of the Dalai Lama to one in which it derives from a constitutional framework is critical to maintaining the government’s stability once the Dalai Lama passes on, as Samdhong Rinpoche acknowledged in 2002: His Holiness [the Dalai Lama] is very anxious to institutionalize the continuity of leadership. A Constitution has been written and a Parliament in exile given greater power. The charter provides that when His Holiness does not exist physically, then there would be a provision for appointing a council of regents that would look after His Holiness’s temporal responsibility. So, since there is an elected Kalon Tripa, there may not be a huge leadership vacuum in the future.53

The process of institutionalizing and democratizing the Tibetan government’s leadership has continued apace. In September 2003, the Dalai Lama proposed a major transfer of power to the Tibetan Assembly and the prime minister, which included ending the Dalai Lama’s constitutional authority

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to appoint the chief justices of the Tibetan Supreme Judicial Commission, three members of parliament, the heads of powerful executive bodies such as the Chiefs of the Election Commission, and Foreign Representatives (the government-in-exile’s ambassadors), as well taking away his right to approve both major governmental decisions and his control over the civil service. The Tibetan parliament approved these proposals on March 31, 2004, a major transformation in the government-in-exile’s constitutional allocations of power.54 The efforts also reinforced the Dalai Lama’s secularization efforts to prepare the Tibetan Diaspora for the time without his leadership. Why would a leader such as the Dalai Lama volunteer to give up power? Is it his upbringing as a monk, the influence of the Buddhist notion of Karma, or the belief that material power in this world is not important? Did he receive an inspiration in a vision, or does his willingness emerge from his natural inclination and personality? When asked these questions, the Dalai Lama answers that it is his natural inclination. “As I always tell people,” he said, “I spend 80 percent of my time on spiritual learning, practice, reading scriptures and contemplating on spiritual matters. When I give spiritual teaching, I scarcely feel tired. On the other hand, if I attend [political] meetings, I feel very tired. This, I think, is because I have not much fascination for political or administrative matters. Particularly, as I age, I should be distancing myself even more from political affairs. Now that we have been able to elect a Kalon Tripa, I tell people that I have given myself semi-retirement.”

PART IV: THE FUTURE OF TIBET AND THE DALAI LAMA The transfer of power away from the office of the Dalai Lama notwithstanding, the democratization of the Tibetan government-in-exile is hardly uncontested. Indeed, Tibetans’ loyalty to and dependency on the charisma of the institution of the Dalai Lama have increased rather than diminished. The very democratization of exile politics has, if anything, heightened the Dalai Lama’s influence over the Tibetan people, especially those still living in Chinese-occupied Tibet. To democratize and secularize the Tibetan government inside Tibet, the Dalai Lama in February 1992 set out his vision in “Guidelines on Future Tibet’s Constitution.” This document holds out the promise of promoting a parliamentary system in a future Tibet so as to appeal to Tibetans at home who are denied any form of democracy. “I believe,” the Dalai Lama declared, that: apart from being a multi-party system of parliament, the future Tibetan political system, I hope, will have three organs of government, namely legislature, executive and judiciary, with a clear separation of powers between them. . . . As I have always said, Tibet belongs to the Tibetans, and especially to those who

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are in Tibet. Therefore, the Tibetans in Tibet shall bear the main responsibility in future Tibet’s democratic government.55

To address this issue, the Dalai Lama in 1992 made a major statement regarding his personal status and position in a future Tibet: Personally, I have made up my mind that I will not play any role in the future government of Tibet, let alone seek the Dalai Lama’s traditional political position in the government. . . .if Tibet is to survive as an equal member of the modern international community, it should reflect the collective potential of all its citizens, and not rely on one individual. This means the people must be actively involved in charting their own political and social destiny. It is, therefore, in the interests of the Tibetan people, both long and short term, that I have come to this decision, and not because I am losing interest in my responsibilities. There is no need to worry on this count.56

In the “Guidelines on Future Tibet’s Constitution,” the Dalai Lama carefully details the transitional government of the future Tibet and the national vote to elect its president. According to this plan, the interim government should consist of seven members elected by representatives from districts, one of whom the Dalai Lama will appoint as president. The interim government will hold national elections within two years and establish a committee to draft a democratic constitution of Tibet, if it so chooses, based on drafts already prepared by the exile government. The Dalai Lama will hand over or divest all his political power and authority to the elected president—perhaps the greatest legacy he can bestow on his people. With a tinge of pride, His Holiness once remarked that “our endeavor and attempts at constitution making and democratic experience accumulated by Tibetan refugees in India will be the best gift we can give to our fellow Tibetans in Tibet under Chinese Communist domination.”57 He went on to outline plans for setting up an interim government after the Chinese withdraw from Tibet, which would entail establishing a constituent assembly. “The interim government will be headed by a President who will assume all political powers presently held by me. The present Tibetan government in exile will be considered dissolved ipso facto.” The constituent assembly, in turn, will prepare Tibet’s new constitution on the basis of the drafts prepared in exile. As for himself, self-effacement would go further, “I have made up my mind that I will not play any role in the future government of Tibet.”58 The Future of the Dalai Lama A final crucial issue for the future of the Tibetan people, the governmentin-exile, and the political future of Tibet, is the succession to the office of Dalai Lama. So far, the Dalai Lama has survived the founding fathers of

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Communist China—Mao Zedong, Chou En Lai, Deng Xiaopeng—and he is likely to live through the leadership of Jiang Zemin (who is in his 70s). Given the fact that the Dalai Lama is only six or seven years older than the current president of China, Hu Jintao (touted as the youngest leader to assume the leadership of the Communist Party of China), he will likely have a major say in the future development of Tibet for many years to come. Even so, the Dalai Lama’s time on earth must end eventually. In planning for the succession, he has plainly stated that, “‘If I passed away . . . the Tibetan people would want a Dalai Lama. But I have made clear that the next Dalai Lama will be born in a free country. I think the Tibetans will accept that—and they won’t accept a boy chosen by the Chinese.’”59 For Tibetans inside and outside Tibet, the Dalai Lama’s word on the issue of his succession is final. According to the Tibetan Buddhist tradition, it is the prerogative of the reincarnate lama to determine when, where, and even to whom his successor will be born. The logic is simple: the next Dalai Lama has to continue the mission of the previous lama, and if the incumbent dies in exile, his successor should pick up from where he left. The Dalai Lama’s decision to be born in a “free country” (i.e., one where Buddhism is practiced) means that, unless Tibet in the immediate future becomes free—as either an independent polity or an autonomous zone under at most nominal Chinese occupation—the next Dalai Lama will be born outside Tibet.60 Wherever he is born, however, Tibetans’ traditional mechanism of succession poses its own structural problems. When one Dalai Lama dies, a regent is appointed to rule until the reincarnated Dalai Lama attains his majority. Historically, the period between the Dalai Lama’s death and his eighteenth birthday has been tense and intrigue-ridden. All too often, the leading lamas and aristocrats in Lhasa indulged in cabals, power struggles, and ego clashes. A regent seeking to perpetuate his power or prolong his rule created public uncertainty and anxiety. The most notorious case was the political instability that followed the death of the Thirteenth Dalai Lama, which was created by infighting between supporters of Regent Reting Rinpoche and his teacher, Taktra, that lasted from the mid-1930s up to the eve of the Communist Chinese invasion. This history need not repeat itself, however. In the new era of democratic institutions and values, a regent could, for instance, be indirectly elected by the parliament, and his reign legally specified and limited by the constitution and statutory law. Alternatively, the current Dalai Lama could appoint his own regent(s) for a specific period. The regent might exercise exclusive authority over the search and selection of the Dalai Lama while an elected Kalon Tripa administers the daily functions of the government. Separating the regent from the acting executive power would lessen the conflict of interests and serve as a strong disincentive to power struggles. In addition, the regent could be made accountable to Parliament and the public by require-

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ments to submit periodic reports and announcements. If the mechanisms for choosing the new Dalai Lama and ruling the Tibetan people during his minority are understood as historically contingent processes adaptable to changing circumstances and not as immutable naturalizations of divine law, it will be possible to solve the historic problem of political instability during the regency period by democratic means. Nonetheless, even under democratic institutions set up for the future elected leaders of Tibet, the Dalai Lama will, according to the Buddhist doctrine of reincarnation, be reborn in human form, most likely as a Tibetan. What will be the future status of the Dalai Lama in the context of a democratic Tibetan polity that separates church and state? He has stated that “It is up to the Tibetan people to continue or discontinue with the Dalai Lama after me. . . . Let the institution of the Dalai Lama remain confined to spiritual affairs.” That “confinement” should not be equated with “political irrelevance.” If and when democracy is introduced in a future Tibet, it is very likely that Tibetans’ dependency on the Dalai Lama’s charisma will continue, with the office retaining tremendous moral authority. In such an instance, the institution of the Dalai Lama would provide spiritual and moral leadership without undermining the democratic process of Tibetan society. Given its long history and continuing charismatic appeal, the institution of the Dalai Lama could serve as a stabilizing and unifying factor in future Tibet, while a democratically elected prime minister or president handles executive and political affairs. This model would perfectly exemplify the principles of chos-lug-rimey, separating Buddhist institutions from the state while still allowing Buddhist spirituality to influence politics. Tibetans firmly believe that the institution of the Dalai Lama historically and symbolically represents Tibetan civilization, national unity, and identity, and thus must be preserved. Thirty years ago, Dawa Norbu suggested that “There are two historical stages during which the Tibetan people would need a Dalai Lama most; as a unifying force in their struggle for freedom, and as the only possible manager of chaos and even of anarchy which is likely to prevail during the pre-consolidation period immediately after independence.” After that, he continued, “the institution of the Dalai Lama might still prove useful as a figure head symbolizing continuity in Tibet’s history and culture, like Queen Elizabeth[, who serves the United Kingdom in a similar capacity].”61 The institutional arrangement of the Dalai Lama as the spiritual and moral leader with a democratically elected prime minister as the political leader will provide spiritual and democratic legitimacy to both. For devout, elderly Tibetans, spiritual legitimacy is the more important. For younger, more academically educated generations, democratic legitimacy might be more important. The institutionalization of both Buddhist and democratic sources of legitimacy provides a balance of spiritual and political authority

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that Tibet and Tibetans need to maintain a government at this crucial juncture and for the foreseeable future. Far from destabilizing politics, religion in Tibetan society is a sine qua non for liberal democracy’s success. Conclusion The Dalai Lama began his journey as Tibet’s spiritual and temporal leader during the tragic phase of his country’s occupation by China. In 1961–1963, acting—perhaps compelled to act—from political necessity, the Dalai Lama, still a novice in his twenties, took initiatives to separate church and state, introducing democratic constitutionalism to the Tibetan Diaspora. During four decades in exile, he has adopted several constitutions, each incrementally decreasing his power and strengthening the secular democratic process. Ultimately, following the Buddhist understanding of Karma, he has been willing to forgo all his political power in this life in exchange for spiritual solace preparing for his next life. The Dalai Lama started as a monk and intends to retire as one. The historical embodiment of church and state in Tibet, the Dalai Lama has now proposed their separation. Whether this will happen or not remains to be seen. A familiar Buddhist saying observes that “one who is born, has to die,” and everybody is bound to leave this world, even including the Dalai Lama. When that time comes, Tibetans may—or may not—find his philosophical justification for separating church and state convincing, and they may—or may not—continue to develop the institutional mechanisms for democratizing the Tibetan state that he has championed. It is possible that the Tibetan national movement and its government-in-exile might lose their legitimacy and coherence after the Dalai Lama. Thinking optimistically, one may hope that the seeds the Dalai Lama has sown will bear fruit, and that a democratically elected secular leader will be able to guide Tibet through the coming difficult political transition while the next Dalai Lama maintains his spiritual authority and symbolizes Tibetan’s unity and identity. This compromise might strike the very balance that future Tibet needs: maintaining Buddhist traditions while embracing civil society, democracy, and globalization. In this journey, it is important not to be enticed by radicalism. Persistent gradualism should be the norm. It would be wrong both to suggest that Buddhist ideals either can or should conform themselves perfectly to Rawlsian constructions of a liberal state, and to maintain that a liberal state cannot accommodate the intervention of Buddhist values into its civic life. Historical experience shows that it will be almost impossible to replicate Tibet’s traditional theocratic system. At the same time, it would be extremely challenging and probably futile to uproot religious traditionalism and graft an alien secular system onto Tibetan society. Hence, a middle way needs

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to be cultivated. The concept of chos-lug-rimey will doubtless have to be further refined to resonate with the reality of traditional-yet-modern Tibet. What Tibet needs is a course of persistent gradualism fostered by creative applications of Buddhist doctrine that are both outward-looking yet rooted in tradition, combined with continuing modifications of Tibetan political and social institutions in a democratic direction. The future of Tibet and the exiled Tibetans is best served if the government is built along the lines laid out by a refined definition of chos-lugrimey, separating church and the state, retaining the Dalai Lama as the state’s spiritual leader and unifying symbol, but vesting political power with a democratically elected prime minister and assembly. The concept of choslug-rimey should also be interpreted as sanctioning government’s respect for all religions and sects without elevating one to the status of official creed. Buddhism should be accorded an important place in Tibetan society and its civilization. Nonetheless, secular democracy should be the primary guiding principal of the Tibetan constitution and its polity.

NOTES I wish to thank Prof. William Alford and Prof. Henry Steiner for their invaluable guidance and supervision throughout the completion of my dissertation at Harvard Law School. I also wish to thank Prof. Charles Cohen, Laura Zimmerman, and my wife, Kesang Yangdon, for their comments, and the staff of the East Asian Legal Studies Program for their support. Any errors are mine alone. 1. John Rawls, Political Liberalism (New York: Columbia University Press, 1993), 151. 2. Robert A. Goldwin, “John Locke 1632–1704,” in Leo Strauss and Joseph Cropsey, eds., History of Political Philosophy, 3rd ed. (Chicago: University of Chicago Press, 1987), 467. 3. Jean-Jacques Rousseau, The Social Contract, trans. Maurice Cranston (Baltimore, Md.: Pelican-Penguin, 1968), 49. 4. James Mill, An Essay on Government (Indianapolis: Bobbs-Merrill, 1955). 5. John Stuart Mill, Considerations on Representative Government (New York: Liberal Arts Press, 1958). 6. Freedom House, “Table of Countries, Comparative Measures of Freedom,” Freedom in the World, Annual Survey of Political Rights and Civil Liberties, 2001–2002 (New Jersey: Transaction Publishers, 2002). Also cited at www.freedomhouse.org/ research/freeworld/2001/table1.htm 7. For an argument that the Constitution did not originally enact Jefferson’s famed “wall of separation,” see Philip Hamburger, Separation of Church and State (Cambridge, Mass.: Harvard University Press, 2002). 8. “Constitution of Tibet,” Art. II, chap. 2, in Legal Materials on Tibet, 2nd ed. (San Francisco: International Committee of Lawyers on Tibet, 1997), 109. Affirming the

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significance of Buddhism in the constitution, the Dalai Lama stated that “the clause about the need to conform to the Buddha’s teaching was inserted by me in my own handwriting. The reason was my faith in Buddhism and my belief that Vinayana was democratic.” The Dalai Lama, personal interview, Dharamsala, India, August 2, 2002. 9. The Buddhist principle of Ten Divine Virtues is considered the basis of the legal system of historical Tibet. It divides forbidden acts into three categories: 1) Three Acts of Body: killing, stealing, and sexual misconduct; 2) Four Acts of Speech: lying, slander, abuse, and idle gossip; 3) Three Acts of the Mind: craving, ill will, and wrong view. Offenses under the first category were punishable by court, whereas those of the second and the third categories were not. Nevertheless, the latter two categories still exerted enormous moral influence. Drafting Constitution Reviewing Committee, “Introduction to the Charter of Tibetans-in-Exile, on 21st May 1991,” (Dharamsala, India: published by the Drafting Committee, 1991). 10. Rebecca Redwood French, “Golden Yoke: A Legal Ethnography of Tibet Pre1959” (Ph.D. dissertation, Yale University, 1990), 101. 11. Jamyang Norbu, “Opening of the Political Eye: Tibet’s long search for democracy,” Tibetan Review 25, 11 (November, 1990): 14. The Dalai Lama recalled that, “The very thought of democracy, though I couldn’t put it in words, was with me in Tibet” (13–14). 12. Tibet’s history and the political machinations of previous Dalai Lamas figures importantly in the current Dalai Lama’s thinking: “I believe that the Fifth Dalai Lama had a master plan to perpetuate the lineage with biological offspring. . . . The Fifth Dalai Lama in his autobiography said this: the Dalai Lamas, being celibate monks, do not have biological successors. The Sakyas, on the other hand, [do] have biological successors. Therefore, the Sakya institution is more solid in terms of continuity. I suspect that the Sixth Dalai Lama’s act of giving up the vow of celibacy [he is known to have frequented prostitutes and to have written romantic poetry], probably to have children to continue his lineage, has something to do with what the Fifth said. Of course, this didn’t happen. Lhazang Khan and his faction took a disliking to the Sixth Dalai Lama and removed him [probably imprisoning and then murdering him]. The Seventh Dalai Lama took no interest in politics. He practiced only the Gelug tradition, and was frail and ill most of the time. Then many Dalai Lamas died very young. Foreigners contend that they were poisoned [so that successive regents could perpetuate their power]. I don’t know whether this is true, but they did die young. The Thirteenth Dalai Lama also, I suspect, had a master plan. But, as he said in his Last Testament, his efforts did not receive the cooperation of government officials and abbots of the Three Monastic Seats. His efforts to open Tibet to foreign relations were opposed by the monastic community. This disappointed him. He died a bit too early. After the death of the Thirteenth Dalai Lama, Reting [Rinpoche, a lama] became regent, whose reign was dominated with problems [palace conspiracies and intrigues ending with his murder]. Everybody knows about that. All th[is] shows the problem that is inherent in the system of Dalai Lama rule [ . . . . ] These are reasons why I feel uncomfortable with the system of the Dalai Lamas taking political power.” The Dalai Lama, personal interview, Dharamsala, India, August 2, 2002. 13. The Dalai Lama, personal interview, Dharamsala, India, August 2, 2002.

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14. “As a Dalai Lama, I have to give equal respect to all the schools of Buddhism. This I can do only by practicing all the traditions. Otherwise, I cannot call myself the holder of all the traditions of Buddhism,” The Dalai Lama, personal interview, Dharamsala, India, August 2, 2002. The Fifth Dalai Lama is considered very important in the Sakya and Nyingma traditions, not because he was per se the Dalai Lama, but because he practiced these traditions. 15. The concept itself was not new. The most famous and successful rimey practitioner was the first Jamyang Khentse Rinpoche, whose works such as Drub-Khab Kuntui and Gyuda Kuntui drew upon the thinking of all four sects. In practice, ordinary Tibetan villagers observed their own version of rimey. For them, doctrinal differences meant nothing; what mattered was to have access to a monastery, whatever its sectarian color, as a place of spiritual refuge where monks were available to conduct rituals necessary for the well-being of one’s family or village. Calling for the Dalai Lama “as the supreme temporal and spiritual head of the Tibetan state” to take a nonsectarian stance, author T.G. Dhongthok allowed in an interview: “I believe that His Holiness personally practises all the sects but appears to preach in public most Gelukpa teachings,” though he added that “he is not to blame” for the perceived bias, since people expect him to preach according to the traditions of his own sect. Were he asked to preach from other traditions, Dhongthok surmised, “I am sure, he would gladly do that.” “Interview with T.G. Dhongthok: Four Rivers have the Same Water,” Tibetan Review, 11, 9 (September 1976): 25. 16. The Dalai Lama, personal interview, Dharamsala, India, August 2, 2002. As he explained, rimey was born out of “practical considerations,” because “there will be both believers and nonbelievers in future Tibet.” 17. The Dalai Lama, personal interview, Dharamsala, India, August 2, 2002. 18. They included the representative of Tibetans in Europe, Phuntsog Wangyal (himself a former monk), Bu Nyima Dhondup, Karma Gyatso, and Namkha Tenzin. 19. Karma Chomphel, personal interview, Dharamsala, India, November 5, 2000. 20. Tsering Phuntsok, personal interview, Dharamsala, India, November 12, 2000. 21. Did the inclusion of the terms chos-sig-sung-drel with the Dalai Lama—making a religious leader the head of the government—amount to a theocracy? Speaking recently as the prime minister, Sandhong Rinpoche contended that Tibet was never a theocratic state: “Tibet had two religions, Buddhism and Bon, both of which never became theist. They don’t accept the creator God like the Christians and Muslims. So we don’t have a theology. We have religion but not theology. So our system cannot become theocratic in [the Christian] sense of the term. How can an atheist country become theocratic?” When pressed on the point—What if theocracy is defined as a religious leader running a government or a country?—he responded, “Then the word theo is not put in its proper meaning. If we talk about separating church and state, then it is okay. If we say that a government does not become secular if it is headed by a person practicing religion, then the world will find it hard to find anything secular. No politician has given up religion. The presidents of [the United States] are Christians. I hardly think a non-Christian would ever become the president of [the United States]. If a presidential candidate renounces Christianity, he will find it very difficult to become president. Similar is the case with Muslim countries. They won’t make anyone their leader who believes in another religion. So the

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Dalai Lama, as a follower of Buddhism and the head of the government, does not amount to theocracy. He is an individual and does not represent a particular monastery or church.” In short, like the Dalai Lama, Prime Minister Rinpoche advocated the separation of church and state but not for the separation of religion and politics. Samdhong Rinpoche, personal interview, Dharamsala, India, August 2, 2002. 22. “Charter of the Tibetans-in-Exile,” Preface, Legal Materials on Tibet, 135. 23. Samdhong Rinpoche, personal interview, Delhi, India, November 9, 1999. 24. “In accordance with its traditions, Tibet renounces war as an instrument of offensive policy and force shall not be used against the liberty of other peoples and as a means of resolving international controversies[,] and [Tibet] will hereby adhere to the principles of the Charter of the United Nations.” “Constitution of Tibet,” Art. I, chap. 6, Legal Materials on Tibet, 109. 25. Eighth-century Tibet was a major military empire, extending its territory to Central Asia in the North, India in the South, and China in the East, even occupying China’s capital Changan for a month. However, with the spread of Buddhism and the increasing clout of the monastic community, its military might waned. Tibetans were not alone in taking Buddhist pacifism to heart; according to Max Weber, even the fierce Mongolian “barbarians” were pacified by Buddhism “time and again, during one and a half thousand years. . . .” See Max Weber, Economy and Society: An Outline of Interpretive Sociology, eds. Guenther Roth and Claus Wittich, trans. Ephraim Fischoff et al., 2 vols., (Berkeley, Calif.: University of California, 1978), 2:1160. 26. Samten G. Karmay, “Religion: A Major Cause of Tibetan Disunity,” Tibetan Review, 12, 5 (May 1977): 25–26. 27. The “Charter of the Tibetans-in-Exile” proclaims that “The future Tibet shall be a zone of peace and shall strive to disengage itself from the production of all destructive weapons, including Nuclear and Chemical; and currently, the Tibetans-inExile shall refrain from all warfare as a means to achieve the common goal of Tibet or for any other purposes,” chap. I, art. 7, Legal Materials on Tibet, 135–36. 28. A small Indian town where, Buddhists believe, Buddha attained enlightenment. 29. Author’s translation from “Nagen Chenmo,” (Dharamsala, India, 1962), 2–3. 30. Tsering Wangyal, “One Man’s Democracy,” Tibetan Review, 16, 9 (September 1981): 4. 31. Dawa T. Norbu, “Towards Sectarian Harmony and National Unity,” Tibetan Review, 11, 3 (September 1976): 4. 32. “Constitution of Tibet,” Chap. V, art. 37, Legal Materials on Tibet, 115. 33. For many Tibetans, the constitution was a blessed gift from the Dalai Lama. It was titled Tsatrim Rinpoche (wish-fulfilling jewel), a high honor. Tibetans kept a copy of it on their home altars. 34. In a draft, the Dalai Lama stated that “Our constitution will be based on the Lord Buddha’s teaching and the United Nations’ Universal Declaration of Human Rights. In order to achieve progress in [the] future, we should develop a political and social organization according to the wishes of the people. Such an organization must be initiated by the people themselves.” The Essence of the Constitution of Future Tibet: His Holiness the Dalai Lama’s Thought (Dharamsala, India: Published by the Office of His Holiness the Dalai Lama, 1961), 2.

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35. Gyakpon Kesang Damdul, personal interview, Dharamsala, India, November 11, 2000. 36. “Constitution of Tibet,” Chap. V, art. 36, subsect. (1)(e), Legal Materials on Tibet, 114. 37. Narkyid Ngawang Thondup, personal interview, Dharamsala, India, November 14, 2000. 38. Feelings ran high, perhaps unnecessarily so. Narkyid Ngawang Thondup, a member of the constitution drafting committee, remembers allegations of his conspiring with the Chinese: “Some people grew jealous of me and the Indian government was informed about the threat of one person (me) having communist ideas. They also submitted a complaint petition to the Kashag [cabinet], who summoned me and the group together. In the meeting, the group even threatened to cut my hand. I was not angry. I only said that I did what His Holiness the Dalai Lama told me and that they can do what they like with me. I did not say much.” Narkyid Ngawang Thondup, personal interview, Dharamsala, India, October, 2000. 39. As to why he felt the necessity to propose such a drastic proposal, the Dalai Lama said: “I felt that it wouldn’t do for me to monopolize power. I was against the idea of lamas holding political power. Therefore, I insisted that there wouldn’t be genuine democracy unless it was possible for people to take away the Dalai Lama’s power. I insisted on this clause (impeachment) despite the expression of misgivings from many quarters. Secondly, we were challenging the Chinese government. We were complaining that the Chinese system was authoritarian, and therefore, unacceptable. Now, if we complain against the Chinese government, it goes without saying that we should be able to provide an alternative. So, I thought that democratizing our own society would provide a fitting challenge to the Chinese government.” The Dalai Lama, personal interview, Dharamsala, India, August 2, 2002. 40. Norbu, “Opening of the Political Eye,” 14. 41. See “Constitution of 1963,” Chap. V, arts. 29, 24; Chap. VI, art. 59; Chap. 7, art. 62, Legal Materials on Tibet, 113, 114, 118, 119. 42. The Dalai Lama, personal interview, Dharamsala, India, August 2, 2002. 43. The Dalai Lama, personal interview, Dharamsala, India, August 2, 2002. 44. “Excerpts from His Holiness the Dalai Lama’s Address to the 16th National Assembly in Dharmasala on May 6, 1989,” Tibetan Bulletin, 20, 2 (June–July 1989), 17. 45. “From Now on People’s Decision Will Be Final,” Tibetan Bulletin, 21, 3 (May– June 1990): 1–4. The committee was chaired by former Prime Minister Juchen Thupten with Professor Samdhong Rinpoche serving as vice-chair. The committee was aided primarily by Indian-educated Tibetan officials, including a few law school graduates and a Tibetan-American lawyer. Although the committee translated and consulted the constitutions of many countries, including the United States, Canada, and Germany, the Charter was, unlike the case in 1963, debated and drafted solely by Tibetans. 46. Compare the “Constitution of Tibet,” [Preamble], with the “Charter of the Tibetans-in-Exile,” Chap. 1, art. 1, Legal Materials on Tibet, 109, 135. 47. “Charter of the Tibetans-in-Exile,” Chap. IV, art. 29, subsecs. 3–4, Legal Materials on Tibet, 140. The “Constitution of Tibet,” Chap. V, art. 30, subsec. 1, gave the Dalai Lama power to appoint “such number of Ministers as may be required,”

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from which body he was to nominate a prime minister and constitute the Kashag. This power implied that he might remove a minister or dissolve the Kashag, the practice between 1960 and 1990. Legal Materials on Tibet, 113. Since 2000, however, the people have elected the prime minister, who in turn appoints ministers to the cabinet and may dismiss them, albeit with the Dalai Lama’s assent. 48. “Charter of the Tibetans-in-Exile,” Chap. V, art. 57, Legal Materials on Tibet, 146. Compare this provision, which mandates that the Dalai Lama consult with an expanded group of individuals, including a popularly elected prime minister, with that of the “Constitution of Tibet,” Chap. V, art. 34, which stipulated that the Dalai Lama could dissolve the National Assembly after consulting only the Kashag and the Assembly’s speaker. Legal Materials on Tibet, 114. 49. The Dalai Lama, personal interview, Dharamsala, India, November 23, 2000. He elaborated: “I being a person belonging to the Dalai Lama institution should not become the leader of Tibetans and Tibet. This is becoming clearer and clearer. In future when we return back to Tibet, I have clearly decided to hand over my power and responsibilities to the local Tibetan government. The tradition of [the] Dalai Lama institution becoming the leader of the Tibetan government should come to a full stop. 50. “Governing in Exile: A Step in Democratic Direction,” Tibetan Bulletin, 5, 4 (Sept.–Oct. 2001), 5. 51. Their portfolios were: Samdhong Rinpoche, prime minister, as well as foreign and security minister; Lobsang Nyandak, minister of finance and health; Thupten Lungrig, minister of education and of religion and culture; and Lobsang Nyima, home minister. “The New Kashag and Portfolios,” and “Governing in Exile: A Step in Democratic Direction,” Tibetan Bulletin, 6–7. 52. On this point it is noteworthy that the three Kalons (ministers) are all laymen, from ordinary backgrounds. 53. Barbara Crossette, “Tibetan Monk Prepares Exiles for a Political Shift,” New York Times, late edition, July 21, 2002, Sec. 1, p. 4, col. 3. 54. “Dalai Lama transfers his powers to Parliament-in-exile,” reported by ANI, April 1, 2004: see www.phayul.com/news/article.aspx?id-6444. 55. “Guidelines on Future Tibet’s Constitution,” in A. A. Shiromany, ed., The Political Philosophy of His Holiness the XIV Dalai Lama: Selected Speeches and Writings (New Delhi: Tibetan Parliamentary and Policy Research Centre, 1998), 279. 56. “Guidelines on Future Tibet’s Constitution,” in A. A. Shiromany, ed., The Political Philosophy of His Holiness the XIV Dalai Lama: Selected Speeches and Writings, 280. 57. The Dalai Lama, personal interview, Dharamsala, India, November 23, 2000. 58. “Guidelines on Future Tibet’s Constitution,” Shiromany, ed., Political Philosophy of His Holiness the XIV Dalai Lama, 280. 59. Jonathan Mirsky, “The Dalai Lama on Succession and on the CIA,” New York Review of Books, 46, 10 (June 10, 1999): 48. 60. Mirsky, “The Dalai Lama on Succession and on the CIA,” 48. 61. Norbu, “The Last Dalai Lama?” 4.

V RELIGION AND TERROR

13 Grave Images: Terror and Justice Regina M. Schwartz

Abraham Lincoln’s sad observation in his second inaugural address that during the Civil War, “Both sides read the same Bible and pray to the same God, and each invokes His aid against the other” has echoed beyond the same war, scripture, and deity, to describe the instrumentalization of God to endorse violence.1 Both the United States’ War on Terror and their enemies’ war of purification make frequent use of God. According to George W. Bush, “Freedom and fear, justice and cruelty, have always been at war and we know God is not neutral between them.” He knew, because God, like Donald Rumsfeld, was a member of his cabinet. In Osama bin Laden’s view, “the world is split into two camps: the camp of believers and the camp of infidels.”2 For all of their differences, both invoked an all-too-familiar God, or, perhaps, I should say, idol: the god of vengeance, a god who destroys the enemies of his people and rejoices at their defeat.3 This kind of god/idol was also invoked during the Crusades to destroy Muslims, during the conquest of the New World to obliterate natives, during the Spanish Inquisition to expel Jews, during England’s Civil War by both sides against the other, in Bosnia during ethnic cleansing, and during the American invasion of Iraq. How is this possible? Amid the vast variety of representations of God in the Bible, two basic poles emerge. At one end of the spectrum, God is depicted as infinitely charitable, endlessly giving, dispensing blessings on all. In Exodus, the story of manna offers the image of a God who rains food from the heavens, enough for everyone. The notion that some would want to hoard manna, to take more than they need, is addressed in a remarkable narrative that schools the Israelites in an equitable distribution of their resource: 323

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“That,” said Moses to them, “is the bread the Lord gives you to eat. This is the Lord’s command: Everyone must gather enough of it for his needs” . . . When they measured in an omer of what they had gathered, the man who had gathered more had not too much, the man who had gathered less had not too little. Each found he had gathered what he needed (Ex. 16:16, 18).4

Despite all evidence to the contrary—despite their starving in the wilderness—the Israelites are asked to trust in a God who will provide and to base their ethics on the presupposition of plenty so that they will not hoard. But soon, they refuse this divinely ordained distribution of resources that dictates “each according to his needs.” When they hoard their food, it rots, indicting them: Moses said to them, “No one must keep any of it for tomorrow.” But some would not listen and kept part of it for the following day, and it bred maggots and smelt foul; and Moses was angry with them (Ex. 16:19–20).

Socialism in the wilderness fails, big time, but the image of a God who feeds everyone endures. He shows up in the New Testament, where Jesus miraculously multiplies the loaves and fishes to feed everyone. But even such evocative visions of generosity can be twisted to legitimize exclusions based on scarcity. In an op-ed column about the Albanian refugees fleeing to Italy, a spokesman for the Italian Right wrote: “We can offer them a plate of pasta but not open the cafeterias. Even Jesus who multiplied bread and fishes did not open trattorias. He transformed water into wine, but, it seems to me, only once, and even then, for a wedding. Albania, like Bosnia, is not our problem, but the problem of Europe.” Nakedly instrumental acts of reading have often turned God and the scriptures into weapons to degrade and murder those designated as infidels. This tends to happen when people become so preoccupied with defending the borders of their identity—Italians against Albanians, Americans against Baathists, Christians against Muslims, Protestants against Catholics—that they compromise the very ethical injunctions inscribed in their religious traditions. They hijack God and religion to reinforce idolatry, the identity of those who claim to be believers. There is little evidence that this kind of fundamentalism of identity has any interest in God; rather, its perpetrators are interested in being identified as the good ones over against evil others. Hence, they invoke the God of vengeance. This has prompted critique: Erasmus was impatient with monks worrying too much about the color of their habits and not enough about feeding the poor. When Matthew Arnold defined religion as heightened ethical sensibility, he could argue that genocide in the name of God makes no sense. Long before them, Jeremiah stood at the gate to the Temple of Jerusalem with worshippers streaming by him, and warned that their abuses of their fellow men denied them the divine

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favor they sought through their ritual identity markers (Jer. 7: 1–34). Jesus and Paul followed his example. The other end of the spectrum depicts not a god of generosity who feeds all, but a god of exclusion, the dark side of monotheism. In those biblical stories, divine favor and blessings are scarce and must be competed for, inspiring deadly rivalries like the first fratricide, the story of Cain and Abel. While centuries of Christian theology has focused on the “original sin,” I have turned my attention to the next narrative in Genesis, the story of Cain and Abel, for in it, the first brothers commit the first murder, and I see us as the heirs of Cain because we continue to murder our brothers. What interests me most about the story is that it portrays God as implicated in the brothers’ lethal rivalry rather than as trying to solve it. When the pair offer him their sacrifices, Abel from his flock and Cain from the soil, God inexplicably “looks with favor” upon Abel and his offering but does not “look with favor” upon Cain and his gift. Devastated, Cain murders Abel in a jealous rage (Gen. 4:4, 5, 8). An unwritten story, in which a benevolent deity accepts both offerings, thereby promoting cooperation between sower and shepherd instead of fatal competition, casts the written version, and its god of exclusion, into stark relief. The image of a divine parent who plays favorites, according blessings to one at another’s expense, recurs elsewhere in the Bible. Some are in favor, some out of favor; some are blessed and some are cursed. In the story of Jacob and Esau, after Jacob steals his elder brother’s blessing, the unsuspecting Esau approaches their father to ask for the blessing due to the firstborn son only to learn that because his younger brother has already been blessed, there is no blessing left for him. When Esau heard his father’s words, he burst out with a loud and bitter cry and said to his father, “Bless me—me too, my father!” But he said, “Your brother came deceitfully and took your blessing.” . . . “Haven’t you reserved any blessing for me?” Isaac answered Esau, “I have made him lord over you and have made all his relatives his servants and I have sustained him with grain and new wine. So what can I possibly do for you, my son?” (Gen. 27:34–37)

Then Esau asks a telling question, one that echoes throughout the history of religious strife: “Do you have only one blessing, my father? Bless me too, my father!” (v. 38). This ancestral myth of Jacob/Israel and Esau/Edom, with its terrible answer to Esau’s pointed question, signals not a God of infinite giving from an endless supply of blessings, but one whose withholding instead prompts an interminable future of violence. The Edomites, enemies of ancient Israel, will enjoy no fortunate fate. There will be no blessed future for the Edomites, the enemies of ancient Israel. Scarcity impels this pain. What if the story had imagined the Edomites and Israelites enjoying equally blessed destinies? What if there had been two blessings? Would the

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cultural legacy of the Bible have been any less violent? Surely we would still have had the Crusades, the Inquisition, and the Christian Identity movement, but would the perpetrators have had to look elsewhere in their cultural legacy, other than representations of the will of God as recorded in his authorized text, to authorize their hate crimes? Let me make my presuppositions clearer: for me, these narratives are necessarily human renderings of God. As such, they reflect human preoccupations, offering more of a window onto our social realm than any divine one. Needless to say, scarcity is a tragic condition of our world, and willing it away through religion does not work. To the contrary: what is so dark about this particular notion of monotheism is that it transfers this real, material scarcity to divinity. No longer is scarcity only a condition experienced by human beings—it also comes to be conceived as a limitation in the spiritual sphere. Then, in a circular and deadly way, this divine principle of scarcity can be used to justify real-world exclusions, benefactions for some and not for others, haves and have-nots, the blessed and the cursed. But depicting God as intolerant of the traditions of other people, as slaughtering our enemies, strikes me as a deeply impoverished version of divinity, one that speaks worlds more about human hatred and violence than about any God. Exclusion is not the only handmaid to this vision of monotheism: its other unlovely companion is possession. When, in Exodus, a transcendent deity breaks into history with the demand that the people he constitutes obey the laws he institutes, first and foremost among those laws is the requirement that they pledge allegiance to him, and him alone: “Thou shalt have no other gods before me,” as the familiar commandment phrases it (Ex. 20:3). In theory, a people who will become the ancient Israelites are forged by their allegiance to one deity, and what makes others the Other—Egyptian, Moabite, Ammonite, Canaanite, Perizzite, Hittite, or Hurrian—is their worship of other gods. That is, when ancient Israel is figured as a collective identity—against the Other—that is imagined as against other deities, so that when Israel is threatened, it is not by the power of other nations, but by the wrath of her own God because she has wavered in her exclusive loyalty to him. Hence, inclinations toward polytheism are repeatedly represented as sexual infidelity: “I am a jealous God, you will have none but me” (Ex. 20:5), in which the Lord castigates Israel for “whoring after” other gods, thereby imperiling her “purity” (e.g., Ex. 34:15–16). When Jeremiah mixes the metaphors of idolatry and adultery, he excoriates Israel for “committing adultery with lumps of stone and pieces of wood” (Jer. 3:9). Idolatry, like monotheism, is entangled in a rhetoric of possession, wherein God possesses the people, the people possess the land, the men possess the women, and all hell breaks loose if any of these possessions are compromised. Pluralism is betrayal, punishable with every kind of exile: loss of home, loss of the land, even alienation from the earth itself. Biblical

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narratives are unsparing about the violence of exclusive possession. Hosea’s extended allegory of Israel exposes not only the violent consequences of possession but also the impossibility of successfully possessing: “Denounce your mother, denounce her, for she is not my wife, nor am I her husband. Let her rid her face of her whoring, and her breasts of her adultery, or else I will [ . . . ]make a wilderness of her, turn her into an arid land, and leave her to die of thirst.” (Hos. 2:2–3). While one biblical theology insists that Israel is the possession of the Lord, another consistently suggests that Israel cannot be so possessed. And so even the Almighty kills his people because he cannot command their loyalty, that is, cannot fully own them. In the deep homology of monotheism and monogamy, extended to the analogy of the body to the land, women must be faithful and Israel must be loyal, or else the land itself will be polluted, adulterated, and rendered barren. For instance, the Lord speaks to Israel through Jeremiah: Lift your eyes to the high places and look! Is there a single place where you have not offered your body? ... You have polluted the country with your prostitution and your vices; this is why the showers have been withheld, the late rains have not come (Jer. 3:2–3).

And Ezekiel 16 comprises an extended allegory of Israel as a whore, bringing the relation between infidelity, possession, and exile into sharp focus. It relates the story of a child being born and growing up wild and unloved in the field, and then, when she matures into puberty, of her being owned, sexually and materially by the Lord: And I spread my skirt over you and I covered your nakedness. And I swore to you and I entered into a covenant with you and you became Mine (Ezek. 16:8, emphasis added).

But then young Israel commits adultery with the nations—Egypt, Philistia, Assyria, Chaldea—with, not incidentally, all of Israel’s enemies: You have whored with the sons of Egypt. . . . You have whored with the sons of Assyria. . . . You have multiplied your fornication in the land of Canaan. . . . At every head of the highway you have built your high place and have made your beauty despised, and have parted your feet to all who passed by, and have multiplied your fornications (Ezek. 16:26, 28, 29, 31).

We are soon brought back to property: if Israel cannot be owned, she cannot own. She is stripped of her property, stoned, and then, for good measure, stabbed to death:

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Because your lewdness was poured out and your nakedness was bared . . . [your lovers] shall strip you of your clothes and shall take your beautiful things and leave you naked and bare . . . and they shall stone you with stones and cut you with their swords (Ezek. 16:36, 39, 40).

A monotheism obsessed with a possessed identity is equally obsessed with infidelity, and ghosting it all is the infidel. For what is really possessed here is God, or, rather, a concept of God developed and put to the purposes of some regime. Those purposes are identity politics: the creation and protection of a collective with a substantial personality defined by delimited borders. This preoccupation with identity politics soon leads to the rife identity violence we have seen. But what has happened to the monotheism of generosity and charity? Where did it go? We could plausibly parse scripture as a vast critique of the ideology of possession, an exposé of its inevitable failure and the attendant violence. Such a reading would emphasize that possession is not only impossible—as the story of Israel’s idolatry and exile suggests—it is also dangerous, for the cost of this bounded understanding of identity is too much suffering. But there is another problem: if, from an idolatrous perspective, monotheism depicts multiple loves as adulterating, faithless, and hence polluting of both the people and the land, from another perspective (from the other end of the spectrum), monotheism offers a vision of love that is not reducible to possession by one and that is not exclusive of the Other. From that perspective, monotheism is more proliferating than exclusionary, with blessings to be fruitful and multiply, in injunctions to love others as oneself, and above all, to take responsibility for the widow, the orphan, and the stranger—precisely those whom finite collective identities (marriage, family, and nation) exclude. The generosity of this love contrasts dramatically with the exclusivism of “obey me or lose all.” Not all scriptural rhetoric speaks of exile, censure, murder, or terror. The biblical virtues—charity, faith, and hope (1 Cor. 13:13)—are promiscuous. Infidelity is not the opposite of fides, for faith does not speak the language of possession. Rather, faith, like Hosea’s chesed (love), is unrequired, unrequited, and unconditional. At this juncture, it is worth revisiting the ancient distinction between fidelity and faith. Carrying the basic sense of the Hebrew root, ‘aman, meaning “to sustain, support, or carry,” “fidelity” suggests keeping a pledge, with connotations of certainty, firmness, having confidence in, and stability. It belongs to the realm of law, requiring pledges, evidence, and, above all, obedience. “Faithfulness” is often synonymous with obedience. “Faith,” in contrast, suggests having trust where there is no evidence, no warrant for such trust. Like the faith of Abraham that an impossible promise could be fulfilled, faith rests upon no knowledge: “Now faith is the substance of things hoped for, the evidence of things not seen” (Heb. 11:1); “for we walk

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by faith, not by sight” (II Cor. 7). Faith thus construed has no interest in possessing the Other, whether as substance, materially, as concept, epistemologically, or with power, politically; rather, faith embraces the Other in full life and rejects their death by possession. In other words, faith loves. That sentiment is also biblical. For this reason, I am determined not to embrace the naive secularism that argues that monotheism, with its impossible demand of allegiance to one, must be totalizing and issue in terror. Rather, my critique is confined to what I regard as the genuine idolatry: the possessive monotheism that reduces the Other to an object of instrumentality, condemning them to a living death, perhaps a more common form of violence than the stoning of adulterers. But I have been alluding to the language of Paul, and I now need to worry that, having excoriated the idolatry of possessive, exclusivist monotheism, I am heading down the road of Christian triumphalism and Christian universalism. But I am not going there. Instead, I will return to Exodus and the law, where we will find no eleventh commandment that says “destroy the infidel,” but rather the sixth: “Thou shalt not kill” (Ex. 20:13). A monotheism of generosity and charity can be sufficiently grounded in the law. And yet, the law’s very instantiation appears perversely to undermine such an interpretation and to problematize the possibility that it can establish either comity or justice. The Revelation of the Law not only comes into being as a rupture of transcendence into immanence, but also generates horrific violence. Descending from the sacred mount where he has received the law, Moses discovers the people of Israel disobeying it. And as soon as he came near the camp and saw the calf and the dancing, Moses’ anger burned hot, and he threw the tables out of his hands and broke them at the foot of the mountain (Ex. 32:19).

The people cannot receive this law, are not qualified to receive it, are not deserving of it. So the law is thrown down and they are punished. Moses stood in the gate of the camp and said, “Who is on the Lord’s side? Come to me.” And all the sons of Levi gathered themselves together to him. And he said to them, “Thus says the Lord God of Israel, ‘Put every man his sword on his side, and go to and fro from gate to gate throughout the camp and slay every man his brother, and every man his companion, and every man his neighbor.’” And the sons of Levi did according to the word of Moses; and there fell of the people that day about three thousand men. And Moses said, “Today you have ordained yourselves for the service of the Lord, each one at the cost of his son and of his brother, that he may bestow a blessing upon you this day” (Ex 32:26–29).

So much for the sixth commandment, which, like the tablets, shatters at its inception.

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But on what grounds are the Israelites unqualified to receive the law? Are they condemned according to a principle of justice that precedes the law, an impossible justice that must be prior? According to that reading, the story would recount how, having violated justice, the people cannot have the law. But this reading quickly collapses before one of the most compelling aspects of this narrative: it is precisely the first command of the law—the law and not a prior justice—that they violate, and therefore disqualify themselves for the law. The first law is, “You shall have no gods except me. You shall not make yourself a carved image or any likeness of anything in heaven or on earth beneath or in the waters under the earth; you shall not bow down to them or serve them” (Ex. 20:3–4). In worshipping an idol, they show themselves unworthy to accept the injunction forbidding their worship of idols. Here, where justice is violated, law is broken. There is no law without justice. Affirming Kant’s understanding of enforceability, Jacques Derrida has noted that: there is no law that does not imply in itself, a priori, in the analytic structure of its concept, the possibility of being “enforced,” applied by force. Kant recalls this as early as the Introduction to the Theory of Right (paragraph E, which concerns law “in its strict sense, das stricte Recht”). There are, to be sure, laws [lois] that are not enforced, but there is no law [loi] without enforceability and no applicability or enforceability of the law [loi] without force, whether this force be direct or indirect, physical or symbolic, exterior or interior, brutal or subtly discursive—even hermeneutic—coercive or regulative, and so forth.5

But in the biblical scene of the giving of the law, enforcing the law is not a response that follows on the heels of law-breaking; rather, enforcement is part of the law-giving. The law is broken even as it is given, and enforced even as it is given. In his work on justice, Derrida elaborates an aporia: the instability of the “distinction between justice and law, between justice (infinite, incalculable, rebellious to rule and foreign to symmetry, heterogeneous and heterotropic) on the one hand, and, on the other, the exercise of justice as law, legitimacy or legality, a stabilizable, statutory, and calculable apparatus [dispositif], a system of regulated and coded prescriptions.”6 He adds, Everything would be simple if this distinction between justice and law were a true distinction, an opposition the functioning of which was logically regulated and masterable. But it turns out that law claims to exercise itself in the name of justice and that justice demands for itself that it be established in the name of a law that must be put to work [mis en oeuvre] (constituted and applied) by force “enforced.”7

Then, in the midst of his discussion of the instability of justice and law, Derrida tangentially alludes to Emmanuel Levinas’s notion of justice, to justice as a relation to the Other of dissymmetry:

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I would be tempted, up to a certain point, to bring the concept of justice—which I am here trying to distinguish from law—close to Levinas’s. I would do so just because of this infinity and because of the heteronomic relation to the other [autrui], to the face of the other that commands me, whose infinity I cannot thematize and whose hostage I am . . . .The Levinasian notion of justice would rather come closer to the Hebrew equivalent of what we would perhaps translate as holiness [sainteté]. But since I would have other difficult questions about Levinas’s difficult discourse, I cannot be content to borrow a conceptual trait without risking confusions or analogies. And so I will go no further in this direction.8

I, however, shall venture a little further down that path, which takes me not only to Levinas but to where he leads, the Talmudic commentaries, and, ultimately, where they lead, to the Hebrew Bible. There we discover not just an aporia but a radical identity of the law and justice. In Exodus, law is justice. Because elsewhere the gap between justice and the law is so wide—in Christian theology, which sees the Pharisaic law as inhibiting the realization of justice; in philosophy, where from Plato on, law is formal and justice is substantive; and in political theory, which frequently tilts toward a procedural justice while abandoning substantive justice—this radical biblical vision, wherein the law is justice, is arguably unique. Again, the instance in Exodus is so radical because there the justice that shows itself as prior to the law also inheres in and constitutes the law. The law is: only the law of the one God is just, and, without this law, of obeying the one God and his law, there can be no justice. The biblical case defies the usual logic that would separate justice from law, the oft-noted importance of reserving a possibility of a justice that would exceed the law, contradict it, or even be indifferent to it. Here the justice so often believed to be beyond the law is also the justice of the law.9 The biblical case is radical in another sense, which involves its authority: the force of the law is executed, in this narrative, on those who are in the very process of receiving it. They must answer to the law even though they have not yet received it. In this sense, the law is impossible to reject. This law can be, and is (at the foot of Sinai) broken, but it cannot be refused. Being subject to it is beyond question, for the entry of justice alters the social sphere conclusively. Alain Badiou has described the truth-event that breaks disruptively and unpredictably into the given in all of its irreducible, incommunicable singularity, beyond all conventional understanding: “An evental fidelity is a real break (both thought and practiced) in the specific order within which the event took place. . . . ‘Break’ because what enables the truth-process—the event—meant nothing according to the prevailing language and established knowledge of the situation.”10 Once it is given, there is no way to be outside of this (divine) justice. Anything else is false, a fake. To live justly is to live inside this law; to follow another option is to make a golden calf, to worship an idol.

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Fidelity to this revelation proves to be difficult, however, as Exodus recounts. At first the response is enthusiastic; “all the people said with one voice, ‘All that he has spoken, we will do, we will be obedient [we will listen]’” (Ex. 24:3, 7).11 Levinas points out that the term evoking obedience here (we will do) is anterior to that which expresses understanding (we will listen) and in the eyes of the Talmudic scholars is taken to be the supreme merit of Israel, the wisdom of an angel. . . . This kind of obedience cannot be reduced to a categorical imperative in which a universality is suddenly able to direct a will. It is an obedience, rather, which can be traced back to the love of one’s neighbour . . . a love that is obeyed.12

I see this “love that is obeyed” condensed in the magnificent metaphor that is, in fact, the only thing close to a “positive law” offered in a revelation that resists such formulations: “you shall not boil a kid in its mother’s milk” (Ex. 23:19) (i.e., do not deal death to that which gives life). Subsequently, however, when the Israelites betray the revelation-event, they do so in every sense that Badiou enumerates: disavowal, as if nothing had happened; false imitation of the event, and an ontologization of the event, reducing it to a new positive order of being. They doubt the validity of the event, murmuring, “is God with us or not?”; they reduce their emancipation to the material god of a substantial people: “having made themselves a calf of molten metal and worshipped it, they said ‘Here is your God, Israel, who brought you up from the land of Egypt!’” (Ex. 32:8). This ontologization is offered up as idolatry, betrayal, evil. And when Moses demands fidelity to the revelation, only that fidelity, and not substantialist identity, will suffice: “each of you,” he orders the sons of Levi, “kill your brother, friend, and neighbor” (Ex. 32:27). The revelation starts a revolution. I hope it is apparent that, with this priority of the law, I have shifted the understanding of idolatry away from the preoccupation with group identity, with defining some “us” against some “them,” to another perspective. At this disruption called revelation, this entry of a universal justice, the idol is not someone else’s god—the god of the Moabites or the Israelites, of Osama bin Laden or George Bush—the idol is injustice. In this scheme, if the biblical name for justice is revelation, then the biblical name for injustice is idolatry. We should note that the command signaling this radical entry of the law and justice is not incidental: the prohibition against making idols is given pride of place (immediately after the preamble announcing that the giver of the law brought the Israelites out of Egypt, the “house of slavery,” Ex. 20:2). The true god cannot be rendered in material, cannot be a substantial identity for use, cannot be instrumentalized. Idolatry is not only the wrong object of worship, but the wrong manner of worshipping. I have already focused on a very strange way of worshipping—possessing—that sees foreign gods as threatening to exclusive substantial identity. To possess God, as we

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have seen, means our using him to legitimate our violence. Conversely, when we imagine that God possesses us, we can explain the terrors of history as his righteous wrath against our having allowed breaches in our identity. Both feed the urge to valorize a group’s identity as such. If I have been suspicious about the adequacy of narratives about God, it is not only because they tend to be projections of human life, human desire, human possession, and human violence, but also because any such description necessarily courts idolatry. To speak of representation as idolatry is not new—the rhetoric dates back several thousand years—but to speak of the idol as primarily a verbal rather than a visual representation, a narrative instead of a statue, remains somewhat controversial. And yet it is our narrative idolatries that hold us in their thrall and so demand critique. If there is an idolatry that is not tied to identity politics, to the fetishizing of particular identities, perhaps the Revelation of the Law offers some hint. Here, at Sinai, where the identity of justice and law issues in the commandment against idols, idolatry signals that justice can brook no compromise. No other standard than justice is admissible. This is not the monotheism that needs to deny other gods in an exclusivism grounded in projected scarcity. To the contrary, this is a claim for revelation that is generous. When the prophet Amos records the divine will, his God will accept neither Cain’s nor Abel’s offerings if justice is compromised: I hate, I despise your feasts, and I take no delight in your solemn assemblies. Even though you offer me your burnt offerings and cereal offerings, I will not accept them, and the peace offerings of your fatted beasts I will not look upon. . . . But let justice roll down like waters, and righteousness like an ever-flowing stream (Amos 5:21–22, 24).

True justice presents itself as leading to ever-flowing abundance, not to a primordial war for scarce goods. Levinas has shown how the pact that began as particular to Israel is opened up until it becomes universal. Who receives this law? When Joshua carries out the Mosaic edict expressed in Deuteronomy 27 to keep the commandments, all Israel participates—but still, only all Israel: And all Israel, sojourner as well as homeborn, with their elders and officers and their judges, stood on opposite sides of the ark before the Levitical priests who carried the ark . . . [and Joshua] read all the words of the law, the blessing and the curse, according to all that is written in the book of the law.13

But when the Mishnah deals with this story, it develops a different reading: They turned their faces toward Mt. Gerizim [the text of Joshua 8] and began with the blessing. Blessed be the man that maketh not a graven or molten image. And both these and these answered, “Amen!” [quotation from Deuteronomy]. . . .

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And afterward they brought the stones and built the altar and plastered it with plaster. And they wrote there all the words of the Law in seventy languages, as it is written “very plainly” [ba’er hetev].14

As Levinas notes, what had begun as a particular, concrete community is now universalized, for the law is written in seventy languages. Notwithstanding Paul’s purposeful misreading of the law as particularist (and all that has spawned in Christian theology), rabbinic commentary came to regard the giving of justice and law as universal. Ever since Thomas Hobbes, however, political theory has taken refuge in the notion that it is law, and not justice, that offers a true universal. Substantive justice is particular, contingent, culturally specific. And because one culture’s notion of justice is so different from another’s, their differences can be adjudicated only through law. Only law, understood solely as procedure, offers a formal universal. Stuart Hampshire has stated this position clearly: fairness in procedure is an invariable value, a constant in human nature. Justice and fairness in substantial matters, as in the distribution of goods or in the payment of penalties for a crime, will always vary with varying moral outlooks and with varying conceptions of the good. Because there will always be conflicts between conceptions of the good, moral conflicts, both in the soul and in the city, there is everywhere a well-recognized need for procedures of conflict resolution. . . . This is the place of a common rationality of method.15

But behind Hampshire’s gentle resort to the equity of rational procedure may lurk Leviathan. Hobbes unmasks the dirty secret that the universalism of procedure is grounded not just in conflicting notions of the good, as Hampshire notes, but more fundamentally in the state of endless war over scarce goods. At its best, the procedure or contract offers a constraining effort to impose peace on this warring state of nature, but Hobbes knows all too well that, because social contracts are artificial and fragile, they ultimately require the enforcement of totalitarianism: it is no wonder if there be somewhat else required (besides covenant) to make their agreement constant and lasting; which is a common power, to keep them in awe, and to direct their actions to the common benefit. The only way to erect such a common power . . . is to confer all their power and strength upon one man, or upon one assembly of men, that may reduce all their wills, by plurality of voices, unto one will . . . And he that carrieth this person, is called SOVEREIGN, and said to have sovereign power, and every one besides, his SUBJECT.16

Once substantive justice is emptied, the reign of law can quickly become a reign of terror—the procedures are already in place.

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Can we confidently distinguish this totalitarianism from the monotheism offered in Exodus, that is, distinguish between law as universal procedure (which presupposes warring interests and scarcity) from law as universal justice (which presupposes divine generosity, enough goodness—if not always enough goods—for all)? Perhaps not confidently, perhaps only with trepidation. For our task, it seems to me, is to understand the relation between these monotheisms: the fundamentalist one of particular identity and the universal one of justice. Are they two sides of the same coin? Do they necessarily go hand in hand? Is one, about justice, a mystification produced by the other—the justification of particular identity? Is the “unjust” only the name given to the abhorred infidel? Or is there another dynamic here, a constant threat of a relapse from justice (from loving God as giver of justice) to the graven images (loving the gods of our identity)? To do the work of making that distinction requires more effort, for the temptations of the formal universal are clearly great, and the risks of substantialist justice even greater: after all, whose justice? Why this version of justice? Levinas offers a radical corrective to the procedural justice embraced by so much political theory: Justice cannot be reduced to the order it institutes or restores, nor to a system whose rationality commands, without difference, men and gods, revealing itself in human legislation like the structures of space in the theorems of geometricians, a justice that a Montesquieu calls the “logos of Jupiter,” recuperating religion within this metaphor, but effacing precisely transcendence. In the justice of the Rabbis, difference [between man and God] retains its meaning. Ethics is not simply the corollary of the religious but is, of itself, the element in which religious transcendence receives its original meaning.17

While Levinas is eager to substitute transcendent for procedural justice, he does so with the understanding that transcendent justice is made radically immanent. This immanence is realized when the law is interiorized, as in Jeremiah’s stirring vision of the covenant written on the heart: The time is coming, declares the Lord, when I will make a new covenant with the house of Israel and with the house of Judah. It will not be like the covenant I made with their forefathers when I took them by the hand to lead them out of Egypt, because they broke my covenant . . . This is the covenant I will make with the house 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. No longer will a man teach his neighbor or a man his brother, saying, “Know the Lord,” because they will all know me, from the least of them to the greatest (Jer. 31:31–34).

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When the preoccupation with identity and possession—”I will be your God if you will be my people”—is replaced with interiorized justice—”Then I will be their God and they will be my people”—the Bible moves, albeit subtly, from a conditional threat to an unconditional promise, from the substantial identity that excludes the Other to the universal law’s uncompromising demand for justice. This internalization of justice is not the same as the incarnation, the Logos of Christianity. Levinas distinguishes them: “God is real and concrete not through incarnation but through Law.”18 Here, God is not the figure of the savior who mystically atones for the sins of the world. Because so much of humankind is unjust, the just man will suffer. In “Loving the Torah more than God,” Levinas engages an anonymous text, purportedly an account of the Warsaw Ghetto resistance written by one Yossel, son of Yossel, who “witnessed all the horrors, lost his children under atrocious circumstances, and, in his remaining few hours, offers his final thoughts.”19 Doubts flow from his agony: “What can this suffering of the innocents mean? Is it not proof of a world without God, where only man measures Good and Evil?” But these “murmurings” take a very different turn from the generation lost in the wilderness. Instead of betraying the revelation in the midst of this horror, “Yossel, son of Yossel experiences the certainty of God with a new force, beneath an empty sky.” Levinas reads the empty sky as the opportunity for a full conscience: “if he is so alone, it is in order to take upon his shoulders the whole of God’s responsibilities.”20 An absent God becomes most immanent internally: “This God Who hides His face and abandons the just man to a justice that has no sense of triumph, this distant God, comes from within,” from the intimacy of one’s conscience. Empty sky, full conscience. In Derrida’s own version of this interiorized justice, this transcendence made immanent, he notes the paradox that “the inaccessible transcendence of the law [loi], before which and prior to which man stands fast, only appears infinitely transcendent and thus theological to the extent that, nearest to him, it depends only on him, on the performative act by which he institutes it: . . . The law [loi] is transcendent and theological, and so always to come, always promised, because it is immanent, finite, and thus already past.”21 Not procedural justice, not formal justice, this is a positive, substantive vision of justice that springs from charity. In his succinct enunciation, “Justice itself is born of charity. They can seem alien when they are presented as successive stages; in reality, they are inseparable and simultaneous. . . . ” As the call to responsibility, justice must hold institutions of justice to account. And as they are answerable to justice, so justice is answerable to love: “Love must always watch over justice.” Here, the affinity with negative theology becomes apparent: internalization of justice, of charity, of love, and a transcendence made immanent.

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Levinas distrusts mysticism, but my own sense is that this is because he, like many, reduces mysticism to the ecstatic experience of complete combining with Godhead, rather than heeding the rigors of the negative theology that eschews nomination, predication, and substantiation. In my work on the sacramental during the early modern period, I have observed that when a concept of community is not infused with the mystical, it descends quickly into substantialism. When, for instance, transubstantiation lost its mystical character during the Reformation, what was left, and inherited by the state, was the substantiation without the “trans.” Nationalism, among other identities, was then called upon to take the place of the eucharistic community, the Body of Christ.22 The command against graven images is, in the end, a mystical command, a mystical law—God cannot be named, cannot be possessed, and so cannot be instrumentalized as either belonging or not belonging to the group, and thereby cannot subject them or their brothers to the curse of Cain. In Deuteronomy, after Moses recounts the scene of the giving of the law, he offers a powerful summary of the law, one that affirms Levinas’s insight that there is no prescriptive, indeed, that the only positive law is justice itself. Moses speaks, enjoining the people to remember the law and its revelation: And now, Israel, what does Yahweh your God ask of you? Only this: to fear Yahweh your God, to follow all his ways, to love him, to serve him with all your heart and all your soul, to keep the commandments and laws of Yahweh that for your good I lay down for you today (Deut. 10:12–13).

What does this law amount to? First, the law requires faith in this law, in the giver of this law, and assent to the prohibition against false truths. Next, it prohibits abuse: do not murder, steal from, or slander another (that is, kill him with words). Moses continues: Circumcise your heart then and be obstinate no longer, for your God is never partial, cannot be bribed. It is he who sees justice done for the orphan and the widow, who loves the stranger and gives him food and clothing. Love the stranger then, for you were strangers in the land of Egypt (Deut 10:16–19).

Deuteronomy demands justice to the needy, and no circumcision of the mere flesh—no markers of identity—will suffice. The heart must be circumcised. Jeremiah presses on this demand: “See, the days are coming—it is Yahweh who speaks—when I am going to punish all who are circumcised only in the flesh” (Jer. 9:25). Paul, therefore, does not innovate nor adds good news to Judaism when he says: “To be a Jew is not just to look like a Jew, and circumcision is more than a physical operation. The real Jew is the one who is inwardly a Jew,

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and the real circumcision is in the heart—something not of the letter but of the spirit” (Romans 2:28–29). This much was already firmly part of the covenant: “Circumcise yourself for Yahweh; off with the foreskin of your hearts (men of Judah and inhabitants of Jerusalem) lest my wrath should leap out like a fire . . . in return for the wickedness of your deeds” (Jer. 4:4). One can only wonder how this consonance, indeed, imitation, of Jeremiah can sustain the reading of Paul as anti-Semitic. He is, rather, a Jew who echoes both the Mosaic covenant and its prophetic interpretation to the letter: “It is not listening to the Law but keeping it that will make people holy in the sight of God” (Rom. 2:13). But where is this justice? This God who makes justice flow like the waters? Where, indeed, when the scene of the breaking of the law in Exodus has offered such a graphic depiction of the impossibility of justice? I return to commentary, to what Genesis Rabbah says about the justice of God: When Abraham addressed his plea to God, “Shall not the Judge of all the earth do justly? The meaning of his words was: If You desire the world to continue there cannot be strict justice; if you insist on strict justice, the world cannot endure.”23 Here, the failure of justice, the hidden face of God, is not only part of the suffering of Judaism but also the threat to the entire creation. As Levinas writes, commenting on Rabbi Hayyim Volozhiner’s Nefesh ha’Hayyim [The Soul of Life], published posthumously in 1824, man has a partnership in the creation, for “through God’s will, man’s acts, words, and thoughts . . . condition or disturb or block the association of God with the world.” God needed man to give life to the beings of the world, to sustain them, “and thereby bring them into existence.”24 How is this participation in the sustenance of the world achieved? Through each act of justice: this is the meaning of “participation” in divinity. “Let nobody in Israel—God forbid!” wrote Volozhiner, “ask himself: what am I, and what can my humble acts achieve in the world? Let him rather understand this, that he may know it and fix it in his thoughts: not one detail of his acts, of his words and of his thoughts is ever lost. Each one leads back to its origin where it takes effect in the height of heights . . . The man of intelligence who understands this in its truth will be fearful at heart and will tremble as he thinks how far his bad acts reach and what corruption and destruction even a small misdeed can cause.”25

“In this way,” writes Levinas, “man becomes, in turn, the soul of the world, as if God’s creative word had been entrusted to him to dispose of as he liked, to let it ring out, or to interrupt it.”26 When Gen. 1:27 describes men and women as being made in the image of God, it is in this sense, of his having responsibility for the beings of the world. Human beings are not made in God’s likeness to possess the world or gain dominion over it, as Gregory of Nyssa would have it, but to be re-

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sponsible for keeping the creating world through justice—a far cry from the idolatry that would use the Bible as a political weapon. I have labored to show that the substantialist identities associated with Judaism—whether a community of land, of blood, of shared history, of state—do not delimit Judaism, not even in its founding text, the Hebrew Bible, especially not there. Those identities are repeatedly challenged by the ethical imperative to care, not only for the widow and the orphan but also for the stranger, and by the promise made to Abraham and from thence to all the peoples of world that Israel shall be “the light to the nations” (Is. 42:6; cf 49:6, 51:4, 60:3). “In the cave that represents the resting-place of the patriarch and our mothers, the Talmud also lays Adam and Eve to rest: it is for the whole of humanity that Judaism came into the world.”27 One can infer that Jesus understood the law as justice when he asserted: “Do not imagine that I have come to abolish the Law or the Prophets. I have come not to abolish but to complete them” (Matt. 5:17). But one wonders if they have been completed; if the Revelation offers not only the gift of the law but also the gift of justice, nonetheless, the history of human agony and human failure confirm what the Hebrew Bible so tragically depicts: never, never underestimate how difficult this gift of justice is to receive.

NOTES 1. “The Second Inaugural Address,” in Roy P. Basler, ed., The Collected Works of Abraham Lincoln, 8 vols. (New Brunswick, N.J.: Rutgers University Press, 1953). 2. George W. Bush, Speech to Congress, Sept 20, 2001, quoted in Newsweek, March 10, 2003, 28; Osama bin Laden, Al-Jazeera video tape, September 10, 2003. 3. For an amplification of this argument, see Regina Schwartz, The Curse of Cain: The Violent Legacy of Monotheism (Chicago: University of Chicago Press, 1997). 4. All biblical references are to The Jerusalem Bible (Garden City, N.Y.: Doubleday, 1966). 5. Jacques Derrida, Acts of Religion, ed. and intro. Gil Anidjar (New York: Routledge, 2002), 233. 6. Derrida, Acts of Religion, 250. 7. Derrida, Acts of Religion, 250–51. 8. Derrida, Acts of Religion, 250. 9. When one grasps this point fully, caricatures of Judaism as ruled by pharisaic legalism become ludicrous. 10. Alain Badiou, Ethics: An Essay on the Understanding of Evil, trans. Peter Hallward (New York: Verso, 2001), 42, 43. 11. This translation of Ex. 24:7 comes from Emmanuel Levinas, Beyond the Verse: Talmudic Readings and Lectures, trans. Gary D. Mole (Bloomington: Indiana University Press, 1994), 146. 12. Levinas, Beyond the Verse. 13. Joshua 8:33–34, as cited in Levinas, Beyond the Verse, 73.

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14. Mishnah 32a, as cited in Levinas, Beyond the Verse, 74. The translator indicates (205n1) that he “slightly modified” the quotation “to conform to the version given by Levinas,” and that it derives from an English text of the Mishnah published in 1933. 15. Stuart Hampshire, Justice is Conflict (Princeton, N.J.: Princeton University Press, 2000), 4–5. 16. Thomas Hobbes, Leviathan, ed. and intro. by J. C. A. Gaskin (Oxford: Oxford University Press, 1996), Part 2, chap. 17, pars. 12–14, 113–14. 17. Levinas, Beyond the Verse, 107. 18. Emmanuel Levinas, Difficult Freedom: Essays on Judaism, trans. Seán Hand (Baltimore: Johns Hopkins University Press, 1990), 145. 19. Levinas, Difficult Freedom, 142. 20. Levinas, Difficult Freedom, 143. 21. Derrida, Acts of Religion, 270. 22. Regina M. Schwartz, When God Left the World: Sacramentality at the Dawn of Secularism, (Stanford: Stanford University Press, 2008). 23. Genesis Rabbah: xxxix.6 24. Emmanuel Levinas, “Prayer Without Demand,” in The Levinas Reader, ed. Seán Hand (Oxford: Basil Blackwell, 1989), 230. 25. Quoted in Levinas, “Prayer Without Demand,” 230. 26. Levinas, “Prayer Without Demand,” 230–31. 27. Levinas, Difficult Freedom, 176.

14 Compassion, Knowledge, and Power: A Tibetan Approach to Politics and Religion John D. Dunne

In the introduction to his Modern Buddhist Bible, Donald Lopez suggests that the form of Buddhism recently promulgated and practiced in developed countries, especially the United States, should best be considered a “new sect” of Buddhism.1 The subtext of Lopez’s brief discussion is that “modern Buddhism” is far more modern than Buddhist. In other words, Buddhism is simply an easily appropriated slate on which the angst-ridden elite of the developing world may write their own modern concerns. Along these lines, the cultural critic Slavoj Žižek deplores “Western Buddhism” as an untraditional pabulum that saps its adherents of the will to realize any agency within the upheavals of modernity.2 Both Lopez and Žižek are right, I think, to decry an all-too-easy appropriation of Buddhism as a kind of religious opiate, but it would be wrong to think that the “modern” in “modern Buddhism” is supplied only by its Western adherents. Instead, in asking why Buddhism seems so easily appropriated into modernity, we should heed those, such as Gustavo Benavides, who note that traditional Buddhist thought anticipates modernity: In some respects, indeed, systems such as Buddhism went much further than philosophies developed in the Christian world in their approach to philosophical problems. Thus one can regard Buddhist conceptions of language as having recognized the arbitrary and relational character of the linguistic sign. Similarly, the attempt to move beyond the infatuation with the illusory ego can be considered as the most consistent rejection of reification before Marx. Finally the concept of dharma and the concern with causality allow one to analyze all of reality in its constitutive aspects as well as to determine the mechanisms through which these principles relate to each other.3 341

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In terms of what he calls Buddhism’s “modern” conceptual world, Benavides is only scratching the surface here. Even Donald Wiebe, whose approach to modernity amounts to a triumphalist paean to European rationality, highlights features in European intellectual developments that, while central to his version of modernity, are also central to Buddhist thought.4 Nevertheless, while Buddhist intellectuals inhabit a conceptual world with certain modern features, we could scarcely call Tibet “modern,” whether it be before or after the invasion by the People’s Republic of China in 1950. If a kind of “conceptual modernity” elaborated largely by the intelligentsia were sufficient for the constitution of a modern society, then early Buddhist skepticism and its concern with causality would have led us to expect a flourishing technology in the Buddhist world; similarly, the fact that membership in the community of monks is regulated in a contractual rather than in a sacramental manner would have led us to anticipate generalized democratic social arrangements resembling our own through Buddhist Asia.5

Benavides rightly underlines an important lesson here: from the seeming “modernity” of Buddhism we should learn that modernity itself is less monolithic than the singularity of the term may suggest.6 At the same time, this lesson opens up an inquiry into the ways in which Buddhism is in fact not modern, most especially in terms of the political and social institutions in traditional Buddhist countries. We may usefully ask, in other words, why Buddhism’s conceptual modernity did not lead to parallel developments in social and political theory. For now, we will leave this large, perhaps intractable, question aside in favor of a more modest inquiry: given that Buddhist intellectuals did not develop social and political theories and institutions that we would identify as modern, how do those intellectuals react when they are now confronted with the opportunity or need to do so? How, in short, can a Buddhist intellectual turn the “conceptual modernity” of Buddhist thought to the task of creating the theoretical structures that justify or enable the social and political institutions of our times? We could answer this question in many ways, since many Buddhist intellectuals throughout Asia have commented on the social and political issues that confront them through some ineluctable modernity, whether it be brought by an invader (as in Tibet, invaded by China), a more gradual colonizer (as in Sri Lanka, colonized by the British), or a neighbor under modern duress (as in Thailand, confronted by the violent conflict of modern ideologies first in Vietnam and then in Cambodia). Perhaps, however, it is especially Tibet where a Buddhist version of conceptual modernity reached its most rarefied heights, while at the same time social and political modernity seemed especially absent. Indeed, it is only in the last two decades that Tibetan Buddhist intellectuals, despite the clearly “modern” features of Tibetan philosophy, have attempted to formulate any political

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or social theory in relation to modernity. That is, in terms of conceptual modernity, it is almost banal for Tibetan intellectuals to acknowledge, for example, that one’s notion of truth is contingent on a particular context because one’s epistemic practices are relative to teleologically contingent linguistic and cultural assumptions, and even to one’s biology as a human.7 This type of well-elaborated and coherent relativism has been de rigeur for a millennium in Tibet, and it is only one of the ways in which Tibetan Buddhist thought resembles many of the intellectual trends in late modernity. Yet, at the same time, any clearly (or even vaguely) articulated political and social philosophy has been almost entirely absent prior to the last two decades. Thus, in terms of both theory and practice, Tibet is a particularly striking instance of a discontinuity between some well-elaborated forms of conceptual modernity and an almost wholly absent social or political modernity. Hence, given the contrast of Buddhist conceptual modernity with its premodern social and political theories, it may be particularly useful to examine a Tibetan intellectual’s attempt at formulating a political argument in these late-modern times. With this in mind, let us turn to an especially revealing example of such an argument: a political pamphlet called Passkey of the Fortunate: An Analysis of the Full Integration of Religion and Politics, by the renowned scholar Gen (“Teacher”) Lobsang Gyatso. Gen Gyatso’s pamphlet is one of a handful of such works written by Tibetans, but even if Passkey were merely one of hundreds, the intellectual stature of its author would still draw our attention. Widely recognized as one of the finest Tibetan philosophers of his generation, Gen Gyatso was educated entirely through the traditional monastic system, and he had comparatively little knowledge of Euro-American philosophy or theory. One might suppose, then, that he was not particularly qualified to discuss the “integration of Religion and politics” (chos srid zung ‘brel), especially if we compare him to the handful of Tibetans who have studied Euro-American intellectual traditions through graduate programs in Euro-American institutions. In short, if detailed knowledge of what we would call “Tibetan political history” is necessary to this discussion, then Gen Gyatso is a poor candidate. And if the topic requires in-depth knowledge of political theory, which on the international stage must de facto mean European and North American political theory, then he is also poorly qualified. But if the construction of a Tibetan notion of government as the “integration of religion and politics” should spring from Tibetan Buddhist thought, then Gen Gyatso is certainly one of the most qualified authors to have addressed this question. As recounted in his memoirs, Gen Lobsang Gyatso was born the child of very ordinary parents in a very ordinary village in Kham, the eastern province of Tibet. Initially educated at a small, local monastery, he could barely read and write when he set off for the long journey to Lhasa in order to study at Drepung monastery, an immense monastic university with

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some eight thousand monks in residence at the time. Drepung was and (as reestablished among Tibetan exiles in India) still remains one of the main institutions of the politically powerful Gelug sect, the largest branch of Tibetan Buddhism and the one in which the Dalai Lamas are always educated. Despite tremendous competition and hardship, the young Gen Gyatso evinced an astounding flair for philosophical debate and careful thought, and his career soon seemed destined to realize the Tibetan version of the American dream, as evoked by the old Tibetan adage, “The throne of the Gelug has no owner, if mother’s dear boy has the wits to reach it.”8 Unfortunately, that dream was rudely interrupted by Chinese imperialism, and, after the abortive uprising of 1959, Gen Gyatso and thousands of other Tibetans followed the Dalai Lama in his headlong escape from the People’s Liberation Army to seek refuge in India, the “holy land of the Buddha” for Tibetans. Even in exile, Gen Gyatso’s fame as a sharp and original thinker continued to grow, and eventually the Dalai Lama asked him to join with him in establishing an innovative institution, the “School of Dialectics,” where young Tibetan scholars might study Buddhist thought outside of the context formed by the large Gelug monasteries.9 In addition to his philosophical acumen, Gen Gyatso was also among the relatively few Tibetan authors who wrote prolifically even in exile. He composed some two dozen major works—quite an accomplishment for a man who was barely literate when he arrived in central Tibet at the age of 17. His eloquent and fluent style should serve as a paragon for contemporary Tibetan literati. And this makes it all the greater shame that his career was cut brutally short in 1997 at the age of 69. In February of that year, he and two of his students were savagely murdered, knifed to death barely ten minutes’ walk from the Dalai Lama’s quarters. By all but the most biased accounts, his assassins were members of a fanatical and reactionary offshoot of the Gelug sect representing those unable to cope with the strains of modernity. A few months before, he had penned some derisive and insightful criticisms of that sect, and these writings (along with earlier critiques) were likely the immediate cause of his assassination. The text that we will now examine, Gen Gyatso’s Passkey of the Fortunate, may also be implicated in that assassination in a less direct but more profound way.

BACKGROUND Based on a speech presented much earlier, Passkey was written and published in 1991, an important year for the Tibetan government-in-exile. Just two years earlier, the Dalai Lama became a Nobel laureate for peace, and that momentous event helped to spur the rapid completion in 1991 of the

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Charter of Tibetans in Exile. The Charter serves as the constitution of the exile community, and it lays the groundwork for the exile government’s vision of a future constitution in what, it is hoped, will one day be a postcolonial and democratic Tibet. Although Gen Gyatso presents Passkey as a largely descriptive and partially historical work, I understand it as a prescriptive work aimed especially at those in the Tibetan government-in-exile who were engaged in the drafting of the Charter. Gen Gyatso was likewise responding to a comparable work on religion and politics by Dungkar Lobsang Trinley, a Tibetan scholar residing in China who wrote his political text under the auspices of the People’s Republic of China.10 Gen Gyatso’s main task is to respond to those in the exile community who, in a manner similar to Dungkar Lobsang Trinley, wish to lessen or even eliminate the influence of Buddhism in Tibetan politics. In a larger sense, Gen Gyatso was also seeking to make Buddhism relevant to the political modernity embodied by the democratic model of government reflected in the Charter. Gen Gyatso focuses his work on a phrase that, for hundreds of years, was the moniker of the overall governmental system of Tibet: namely, the “integration of religion and politics” (chos srid zung ‘brel). What I have translated as “religion” is actually the Tibetan term chos, the Tibetan rendering of the Sanskrit term “Dharma.” In this context, chos, when used without qualification, refers to the beliefs, texts, and (less precisely) the practices—but not the institutions—that constitute the “the Buddha’s Dharma,” or “the Buddha’s religion.” When speaking of specific historical traditions of Buddhism with monastic or other institutional establishments, Tibetan intellectuals add the word lugs (“system”) to form the compound term chos lugs, a “Religious System” or “Religious Tradition.” When speaking of other religions, Tibetan intellectuals will use the same terms, chos or chos lugs, to speak of these other traditions. In this usage, chos is almost always modified in some fashion, as in ye shu’i chos, “the religion of Jesus,” or even rdzam bu gling gyi chos lugs rnams, “the religions of the world.” When unadorned, however, chos almost immediately conjures only one “religion,” namely, Buddhism. In other words, as J. Z. Smith noted in his genealogy of the term in its EuroAmerican academic use, “religion” means first and foremost “our religion,” in part because it is against “our religion” that other candidates will be compared.11 It is this sense that best approximates chos when Gen Gyatso employs the term in a generic fashion. Hence, I will translate chos with a capitalized “Religion” to render explicit the notion that our author has a paradigm in mind, just as we may have. For Gen Gyatso, Religion paradigmatically refers to the Buddhist Religion, but the term srid (“politics”) points to no clear paradigm. We have already mentioned that traditional Tibetan learning did not include any clearly articulated political philosophy; hence, on a theoretical level no paradigm is available to Gen Gyatso. Likewise, the old (i.e., preinvasion) Tibetan

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government itself was certainly set in its ways, but those ways were often quite obscure and fluid. Certainly, one would be hard put to summarize the workings and structure of the old Tibetan political system in any coherent description. The point, then, is that the formulation of the Charter—as a paradigm for an eventual constitution of postcolonial Tibet—required intellectuals such as Gen Gyatso to envision what “politics” should mean.12 Gen Gyatso himself never quite comes to a clear definition, but his argument assumes that the defining domain of politics are the “worldly” (‘jig rten pa) concerns of power and profit (khe dbang), and that the activity of a political person is to be involved in that domain in either positive or negative ways. That is, in a positive sense, we may say that someone is “political” in that he is involved in regulating power and profit in a manner that benefits the most number of individuals, or a person may be “political” in that he seeks to maximize the power and profit of some segment of society—his family, his monastery, or just himself—at the expense of others.

THE ARGUMENT FOR THE INTEGRATION OF RELIGION AND POLITICS The distinction we have just drawn—between the good and bad politician—is one that lies at the heart of Gen Gyatso’s argument against those who wish to remove Religion (i.e., Buddhism) from Tibetan politics. He begins his line of reasoning with a basic Buddhist theory that has become an axiom for Tibetan political thinking in recent times: namely, that all persons are equal inasmuch as they wish to be happy and eliminate their suffering. The problem, however, is that persons are deeply confused about the means to become happy and eliminate their suffering. Gyatso cites a well known verse: Hoping to relieve their pain, they run directly toward suffering because they are confused. And because they are confused, though they wish to be happy, they kill their happiness as if it were their enemy.13

The point, then, is that if one wishes to be happy and not suffer, one must eliminate one’s confusion about the means to reach those goals. For Gyatso, as for all Tibetan Buddhist intellectuals, that confusion rests on a failure to understand the causal process that produces suffering and thus prevents happiness. In brief, the proximate causes of suffering are mental, vocal, and physical activities that create suffering by causing harm, whether it be harm to oneself or to another. Hence, the first step in eliminating the suffering that obstructs happiness is to find a means to “tame” body,

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speech, and mind such that one no longer engages in harmful activities. As Gen Gyatso explains, Concerning body, speech and mind, one may for a while be able to tame body and speech through worldly guidelines and laws, but like a leopard caged in a leopard trap, body and speech will only be tamed for a while. When the conditions become available, body and speech will revert to the way they were before. As for the mind, it can be tamed for a while by means of instructions that are taken from a religious system, but it cannot be tamed through only worldly instructions. In addition, in order to properly or effectively tame the mind, one must rely on a Religion that has effective instructions and effective advice. It is for this very reason that, for the purposes of human society, one definitely needs a system that integrates the religious and the political (Passkey, 20).

Gen Gyatso here argues that the “worldly” (‘jig rten pa) guidelines or laws will not be effective in preventing harmful activities of body, speech, and mind because the domain of the worldly, power and profit, is not the domain in which one can make an effective intervention of this kind. Instead, it is only in the domain affected by Religion that such restraint or “taming” becomes effective, and on his view, such taming is crucial in the political arena. He clarifies: To be specific, if the members of one’s human society in general, and more especially those persons in high positions of authority, are not tamed in body, speech and mind, then that society will face many problems, such as numerous crises and infrequent peace. This is something that one may know from one’s own experience. So as to lessen such problems, a society may draft much legislation and emphasize the enforcement of its laws, but if the problems that are not thereby subdued become even more prominent, then this is an indication that those laws and legal actions are not taming the minds of that society’s members. For this reason, the Buddha said, “Things are of the nature of mind; the mind is primary, it comes before all. If one acts with a clear mind, then whatever one may say or do will lead to happiness.” Hence, whatever may be the extent or greatness of one’s political system, one must have an equally correct (yang dag pa), extensive and great Religion to supplement it (Passkey 20–21).

For Gen Gyatso, the domain of Religion is the mind itself, and the purpose of Religion is mental transformation; hence, Religion becomes our principal means for obtaining happiness and eliminating suffering. This is so because the main causes of unhappiness and suffering are harmful actions of body, speech, and mind; hence, achieving happiness and eliminating suffering rests on eliminating those actions. The key is that those actions themselves are motivated by deeply ingrained “negative mental states” (nyon mongs) such as anger, greed, lust, and especially ignorance; and the only way to guarantee the elimination of those harmful actions is to transform the mind in such a

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way that those negative mental states no longer occur. Mental transformation, moreover, is beyond the political sphere: it is not a matter of power or profit. Instead, it has to do with the mind, which is the domain of Religion. If we recall Gen Gyatso’s special concern with “persons in high positions of authority,” we can readily see the point he is making: When persons act in the political sphere, there is nothing about politics itself that ensures that they will act so as to benefit, rather than harm, others. The only way to lessen the likelihood that they will act in a deliberately harmful fashion is to lessen (or, if possible, eliminate) the negative mental states motivating those harmful actions, and only Religion is effective in lessening or eliminating those states. Moreover, since political functionaries and others with authority are obliged to manipulate power and profit, it is especially important for them to be engaged in religious practices that lessen negative mental states. Thus, on Gen Gyatso’s view, Religion is clearly crucial to a peaceful society led by a beneficent government.

THE PROBLEM OF CORRUPTION AND SOME SAFEGUARDS Gen Gyatso presents an appealing vision of governmental officials seriously engaged in lessening their anger, greed, lust, and so on through the sincere practice of Buddhism. It does not, however, take much imagination to conjure all sorts of ways in which this idyllic picture might quickly become corrupt. Thinking of the catastrophic loss of Tibetan sovereignty after the invasion by Maoist China in 1950, he responds to a belief held by some Tibetans: There are many who have not carefully examined the essential issues concerning Religion and the essential issues concerning politics in Tibet; they claim that Tibet was lost to the communists because there was too much practice of Religion in Tibet, but this is just the frightened chattering of rabbits. What then is the case? Religion became weak; religious officials too often sought profits and power in contradiction to Religion, and political officials were too eager to seek profits and power that contradicted the government. Due to these and other such conditions, both Religion and politics were weakened, and so Tibet was lost. How, then, does it make sense to say that Tibet was lost due to Religion (Passkey, 40–41)?

This is really the crux of the issue for Gen Gyatso. For Tibetans, the problems of a wholly irreligious government require no extensive demonstration: their experiences under the heavy and brutal hand of Maoist China provide ample and indisputable evidence.14 Nevertheless, while it may therefore seem important to encourage the salubrious influence of Religion on government, some Tibetans publicly (and many more privately) express

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great concern about the obstructionist role played by religious conservatives throughout Tibetan political history. For his own part, Gen Gyatso does not seek to excuse the behavior of influential Buddhists in the past; rather, he aims to justify the continuing status of Buddhism as an official part of the Tibetan government in the future. Indeed, far from excusing the past, part of his strategy is to condemn the corruption of old Tibet’s religious institutions. Drawing a provocative parallel with Russian Christianity, he recounts an illustrative experience: In Russia in particular, the leaders of the Christian church sought to support the politicians, and those church leaders became very enamored of cathedrals, robes, wealth, power and so on. They paid little attention to the people, and most of the people became impoverished. As a result, it was easy for Lenin and others to promulgate socialism. When I myself was traveling in Russia, I saw many old Christian churches, and while they had fallen on hard times, they were still astounding in their basic form. Also, in a museum near Moscow, I saw some splendid ceremonial headgear that formerly belonged to a great Christian priest; this particular item is rather well known in the world. As the guide was explaining all this to me, I recalled the situation in Tibet, and I became exceedingly sad. Later, I also went to the capital of outer Mongolia, and in their largest museum I saw the robes of the Jetsun Dampa’s [i.e., the head Mongolian cleric’s] retinue, especially those items that had been put there in remembrance of his wife. When I saw those robes and ornaments, I spontaneously thought, “The teachings of the Buddha have been destroyed,” and I became very depressed. Afterward, as we were having tea, I was asked, “How was the exhibit?” I responded, “The spread of Buddhism to Tibet and Mongolia was incredibly beneficial, but it also seems very unfortunate that the practitioners in high levels of responsibility became so corrupt.” “How so?” “Those who made the teaching flourish worked endlessly and managed to do so, but it is obvious that those who enjoyed their labors did so in an exceedingly heedless and gluttonous manner.” Indeed, I have already noted that, in our own land of Tibet, those who wrongly practiced the Buddha’s teachings and the practitioners in high levels of responsibility became enamored of luxury, interested in power, distracted by wealth, and so on. As a result, they became the main welcoming party and tools of the Chinese communists (Passkey, 61–63).

Gen Gyatso does not mince words here. He clearly acknowledges and deplores the unwholesome (and well-documented) influence that corrupt religious authorities had in old Tibet.15 He is well aware, however that mere condemnation will not prevent the problem from reoccurring, and he therefore devotes the balance of his text to considering ways to justify and implement the official presence of Buddhism in the Tibetan government while providing safeguards that are intended to prevent the corruption that destroyed old Tibet.

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Some of the safeguards proposed by Gen Gyatso are essentially procedural or structural. He considers, for example, a series of safeguards that rest simply on the acknowledgment that the integration of Religion and politics must sometimes be avoided or abandoned. Such circumstances include any case in which the majority of the population no longer believes in Religion, or the corruption of religious institutions becomes unmanageable, or the political philosophy of the governmental system is incompatible with Religion (Passkey 98–100). Gen Gyatso also proposes proactive policies to prevent Religion from becoming corrupted by politics. The premise of such policies is that Religion and politics come into conflict only when one has failed to correctly understand their domains. As noted above, the domain of politics is power and profit, and when properly executed, the political function of government is to preserve the rights and freedom of all citizens within that domain.16 Understood in this fashion, politics and governance are public affairs. Religion, on the other hand, is a private, multi-lifetime affair whose domain is the achievement of happiness and the elimination of suffering. He remarks: The affairs of government or society are not private issues; rather, they have to do with providing for the needs of the general populace and preserving their rights, profit, and power. The purpose of Religion, on the other hand, is to give a private person the means to achieve happiness—or to practice a good spiritual path that leads to happiness—over the course of many lifetimes, whether it be for one’s own sake or others’. Therefore, the goals and purpose of Religion and politics are distinct, and one must engage in them in a manner that keeps them distinct. Let us not mix the fish with the turnips [or, to use an equivalent American expression, “a place for everything, and everything in its place”] (Passkey, 64–65).

It is crucial to recall that Gen Gyatso does not at all mean that Religion has no official place in government; instead, government needs to encourage the practice of Religion so that governmental officials engage in beneficial, rather than harmful, politics. In other words, the role of Religion in government is to instill and sustain a sense of altruism in governmental officials while also lessening their anger, greed, lust, and so on. Religion, however, can fulfill this function only if religious institutions do not become corrupted by politics, and it is for this reason that safeguards are essential. With this in mind, Gen Gyatso also suggests policies for the active governmental restraint of religious persons or institutions when they become overly politicized. For example: If, in the name of Religion, a movement begins that proposes political strategies to gain political power or that in some way interferes with the rights and profit of the general populace, then that movement must be suppressed and halted by the government or the law. This too is within the jurisdiction of a

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government that integrates Religion and politics. Likewise, religious practitioners who are learned and experienced and who are also expert in the religious moral codes should be sent as professional administrators to investigate and correct individual, private clerics and also religious institutions so as to determine whether they are being run in accord with their religious moral code and whether they are living up to the requirements of their religious practices. And, these administrators having conducted their investigations, firm directives should be issued to prevent any decline in the quality of Religion. These policies, along with governmental support of them, are another responsibility of a government that integrates Religion and politics (Passkey 102–103).

With these and other policies, some of which surely infuriated conservatives in his own sect, Gen Gyatso hoped to create safeguards that would stave off the disastrous corruption and politicization of religious institutions that characterized old Tibet. His proposals are numerous, and some are perhaps promising. Nevertheless, for him the most important safeguard is one that is largely implicit: an uncompromising commitment to reason.

REASON AND THE HIERARCHY OF KNOWLEDGE Gen Gyatso is firmly located in a highly rationalist tradition that generally admits only two forms of trustworthy knowledge: perceptual experience and empirical reasoning (that is, inference based on the evidence of the senses). In extraordinary cases, one may also appeal to a third kind of knowledge, namely, inference based on scriptural passages, but one may do so only when two conditions are met: the issue at hand is crucial to one’s spiritual advancement, and it is an issue that cannot be decided by either perception or empirical reasoning. Based not only on Passkey, but also on Gen Gyatso’s other works and my conversations with him, I am confident, that on Gen Gyatso’s view, cases that require an appeal to scriptural proof are so exceedingly rare as to be irrelevant. In other words, a good Buddhist might allude to scripture for illustrative reasons, but he will base his knowledge claims entirely on his own sensory experiences or on empirical reasoning based on evidence derived from the senses.17 In Passkey, Gen Gyatso does not belabor this point, but it appears at crucial moments throughout the text. For example, when first discussing the need to obtain happiness and eliminate suffering, he introduces the traditional notion of blang dor, “what must be adopted” (blang) in order to become happy and “what must be eliminated” (dor) in order to end suffering. Elaborating on the place of sensory experience, he remarks: The are many different versions of “what is to be adopted and what is to be eliminated,” and even within one version, one must discern the degrees of

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subtlety [of the presentations within that one version]. Likewise, negative mental states such as ignorance are also numerous in their degrees of subtlety; therefore, resorting only to a rational path, one must examine the negative mental states through sensory experience as a trustworthy source of knowledge. If one attempts to examine them through textual analysis, reverential meditation, and so on, one will be unable to do so (Passkey, 17).

And in response to the notion that Religion should be rooted in faith, he responds by highlighting Buddhism’s compatibility with democracy because of its emphasis on reason: Some people say, “Religion is something that should conform to faith only. Politics should conform to a legal system only. Therefore, the combination of the two is contradictory.” In fact, there is no contradiction. Most other religions are followed through faith only, and it is therefore difficult to combine them with politics. Nevertheless, the Buddhist Religion is said to include methods for accomplishing the aims of others in an extensive fashion. And since the Buddhist Religion teaches right and wrong in accord with reality, it is a crucial necessity for proving what constitutes a correct political system. A purely political system such as a communist government conforms to a legal system only; hence, it is difficult to coordinate it with Buddhism. However, it is easy to combine a political system with Religion in a governmental system that has a strong connection with the sciences (rig pa’i gzhung lugs). For example, the democratic governmental system does need the authoritative support of a legal system, but its foundation is to increase the rights and autonomy of its citizens in conformity with empirical reason. Hence, the Buddhist Religion is very much compatible with it, as I have explained and will explain (Passkey, 47–48).

This emphasis on reason is not just a product of a particular style of argumentation; rather, it is crucial to Gen Gyatso’s conception of Religion itself. Just above we saw that a “rational path” is the basis on which one is going to examine one’s sensory experience and come to understand the negative mental states that motivate harmful actions and thus produce suffering. Indeed, for Gen Gyatso’s sect, the Gelug, reason is the principal means of eliminating the negative mental states. To this end, Gelug monks are trained from a young age in a highly refined form of debate that rests on a sophisticated and well-developed theory of empirical inference. As a young monk, Gen Gyatso would often debate for as much as eight hours a day—a practice that still continues in the large Gelug monasteries reestablished in exile.18 A successful debater such as Gen Gyatso is able to run logical circles around his opponents, and one can readily imagine that after years of practicing debate several hours a day, the best debaters gain an astounding acuity in this style of inferential reasoning. The explicit aim of such intensive training is to enable Gelug practitioners to apply their skill in reasoning to

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the analysis of the causes of suffering. To put it succinctly, the conclusion of that analysis is that suffering is caused by a persistent and deeply ingrained mental habit called “ignorance”—an essentialism that causes one to continually err in one’s understanding of the world, especially in relation to one’s personal identity. Dharmakirti, a Buddhist thinker of central importance to the Gelug tradition, puts it this way: All types of flaws [i.e., the negative mental states] are born from the belief that the evanescent components of body and mind are the locus of an essential self. That belief is called “ignorance.” When that belief occurs, one experiences clinging to that alleged self, and from that clinging comes anger and so on.19

Moving beyond Dharmakirti, the Gelupga tradition maintains that ignorance is understood to be essentialism not only about one’s personal identity, but indeed about all things. Thus, at its subtlest, the rational analysis central to Gelug practice is meant to demonstrate that it is impossible for any person or thing to have an essential, unchanging, or absolute identity. In other words, all things are “empty” of essence. By using meditative practices to focus on this “emptiness,” one is able to counteract one’s instinctive essentialism, the deep spiritual ignorance that causes suffering.20 As an intellectual firmly located within the Gelug, Gen Gyatso accepts all of this, and thus, when he says that Religion is the way to obtain happiness, Gen Gyatso more specifically means that Religion is principally a form of rational analysis that, by radically correcting one’s erroneous perspective on self and world, liberates one from suffering. How, then, does reason act as a safeguard against the corrupting influence of politics in Religion? Gen Gyatso’s implicit position seems to be this: Religion is incorruptible because, when properly applied, reason is incorruptible. To put it another way, the corrupting influence of politics is based on engaging with power and profit in a way motivated by negative mental states, such as the lust for wealth. Negative mental states, however, are incompatible with reason, inasmuch as they are rooted in beliefs and habits that do not conform with the nature of reality as discovered by reason. And since Religion itself is rooted in reason, Religion too cannot be corrupted, if reason is allowed to have its proper place. Thus, one way to read Gen Gyatso’s other safeguards is that they are all intended to guarantee that in religious institutions, reason retains its proper place. In traditional terms, this primacy and incorruptibility of reason is expressed in an important verse cited and discussed by Gen Gyatso: In this regard, it is observed that there are two kinds of persons, the spiritual adept and the ordinary person. Among these, the ordinary person is refuted by the adept. And adepts are refuted by successively more advanced adepts through a distinctive quality of their understanding.21

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The main point of this verse is simply that, as one moves up the ladder of spiritual development, one understands the world in a manner that supersedes the understanding of those on lower rungs. Gen Gyatso makes it clear that such progress comes through reason: the higher adept’s knowledge supersedes the knowledge of ordinary persons and lower adepts because the higher adept’s analysis of the world’s ultimate nature conforms more closely to reason. In the Gelug educational system, this rational form of spiritual progress is institutionalized through a gradual progression in the curriculum from a simpler to a more complex metaphysics. Younger monks begin with studies based on a realist Buddhist school, and when their formal education ends many years later, they are expected to be learned in the highest, antirealist school that espouses the critique of essentialism mentioned above.22 I have noted that, according to Gelug thinkers, progress up the ladder depends primarily on the degree to which one’s analysis of the essence of persons and things conforms to reason. This is so because the main impediment to spiritual progress is one’s erroneous beliefs (and hence, cognitive habits or dispositions) in relation to essences. One begins in the first school with a version of essence that is more refined than the naïve beliefs of ordinary persons, and one ends, as noted above, with the most rational analysis, which demonstrates that the belief in any form of essence is erroneous. But at this point, one may wonder why the Gelug bother teaching essence at all: would it not be best to begin with the most rational analysis, the one that critiques essence altogether? The answer is that, without preceding through the study of the lower schools, an ordinary person cannot leap to the study of radical antiessentialism because he simply will be incapable of understanding it. Even if he is able to follow the intricate reasoning, his habits and dispositions will stage a cognitive revolt: the dissonance with what he has believed all along is simply too great, and he will reject out of hand this highest form of Buddhist thought. Hence, not only must beginners be taught the lower schools first, they must even be shielded from the radical views of the higher schools, lest their philosophical careers be spoiled before they can begin.23 Although not clearly acknowledged by Gen Gyatso, this principle—that the uninitiated cannot understand and must even be shielded from higher knowledge—has two critical implications in a political context. The first is that the higher is one’s progress, the more privileged and protected one’s knowledge becomes. That is, the farther one is from the naïve beliefs of ordinary persons, the greater the inability for those persons to understand what one knows, and the greater the imperative to shield ordinary persons from its devastating impact. The second implication is that, while the explicit focus of this knowledge is the question of essence, it also makes one more clearly understand the world from the perspective of those below one.

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That is, by removing one’s confusion about essences, one more clearly sees the ways in which others, who still have that confusion, are constructing and imagining their world. This means, in effect, that one gains a great facility to manipulate that world; it is for this reason that a buddha, who has eliminated all trace of the dispositions rooted in the false belief in essence, is the best of teachers. This much the Gelug tradition accepts. What is not explicitly acknowledged (although Gen Gyatso does hint in this direction) is that it means that a buddha should also be the best of politicians. These two implications—that higher knowledge is privileged and protected, and that it is politically powerful—come along with a third implication that is explicitly acknowledged by Gen Gyatso. That is, by cutting through the ignorant essentialism that fuels our anger, greed, lust, and so on, reason also cuts through the petty and short-term perspectives that drive political affairs about rights, power, and profits. In short, the higher one’s understanding, the greater the danger of becoming disconnected from the world. Even in religious terms, this disconnect is thought to be disastrous, since the highest goal—buddhahood—is not an escape from the world, but rather a transformation of it. And obviously, on a political level it would not at all be useful to inculcate in one’s government officials a philosophy that makes them progressively more alienated from the duties of governance. It is thus crucial for Gen Gyatso to discuss another important facet of Tibetan Buddhism: compassion. It is in this context, however, that we will find the most problematic aspect of his approach to the integration of politics and Religion.

COMPASSION, VIOLENCE, AND PRIVILEGED KNOWLEDGE By all accounts, compassion is crucial to one’s spiritual progress in Maha¯ya¯na Buddhism, the form of Buddhism practiced in Tibet. Without compassion, one’s rational analyses of essence will tempt one into a quietistic escape from the world in a manner that will greatly hinder one’s progress to full enlightenment. This doctrine is well known by Gen Gyatso, but in the political context, he raises an objection that is a kind of corollary: Someone might object, “In the course of governance (chab srid), there are many political actions that do not accord with [the moral law of] karmic cause and effect, such as military strategy or the eradication of evil-doers in accord with the law. Religion, however, should be practiced only on the basis of a path of peace and non-harm, in accordance with [the moral law of] karmic cause and effect. Hence, it is wrong to connect Religion with politics” (Passkey, 51).

Gen Gyatso responds in a manner that reflects the typical doctrinal response to the religious equivalent of this problem: to be fully enlightened,

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one must not allow one’s critique of essences to draw one away from the world into a quietistic escape, and to prevent that escape, one intensely cultivates compassion. This puts one on the path of the “bodhisattva,” one who, having cultivated an extreme degree of compassion, is fully committed to ending the suffering of all beings. Enlightenment or buddhahood thus becomes a means to the goal of eliminating all being’s suffering, rather than an end in itself. It is only by having this degree of compassion that one can avoid an escape into quietism. As a bodhisattva, one is distinguished from those following the so-called “Hı¯naya¯na,” a quietistic Buddhist path in which one seeks escape from suffering for oneself alone. Gen Gyatso employs these well-known doctrines about the practice of the bodhisattva in order to respond to the objection that a religious governmental official might need to act in a manner that leads even to violence. He says: This is an extremely difficult issue, and someone such as me cannot come to any definitive conclusion. Nevertheless, in simple terms, I would say the following. In the context of the Hı¯naya¯na, one must practice in a way that especially prevents oneself from accruing flaws. Hence, one is not able to combine the aforementioned political activities with one’s practice. Nevertheless, such is not the case for a practitioner of the Maha¯ya¯na. Instead, in as much as he is engaged in others’ aims, a Maha¯ya¯na practitioner [i.e., a bodhisattva] must compare the degree of benefit or harm that will accrue to others from the practitioner’s actions, and if the benefit outweighs the harm, he must engage in that task, even if it involves some harm. Likewise, when he compares the degree to which virtue or flaws will accrue to him as a result of his action, if the virtue is greater than the flaws, then he must engage in that virtuous act, without shrinking from the flaws that will accrue. This way of acting is required by the ethical code of the bodhisattva vow. There are two reasons for this. First, except for bodhisattvas on a high stage of the path, other bodhisattvas cannot accomplish great benefit for others in a way that does not involve some flaws or harm. And second, if a bodhisattva does not accomplish others’ aims because he shrinks from the harm involved, his work for the aims of others will cease. Hence, in practicing the Maha¯ya¯na Dharma, one must accomplish those acts that, in accord with the best possible empirical reasoning and the degree of actual benefit for others, will result in accomplishing others’ aims, which are one’s primary goal. One does so in a manner that does not focus on one’s own aims (Passkey 51–52).

In short, as a bodhisattva—a practitioner of the Maha¯ya¯na—one’s great compassion compels one to focus on the needs of others, rather than one’s own needs. Hence, if after careful and rational examination, one determines that a particular action (here, a political one) is in the best interest of most citizens, one must engage in that action, even if it means that one will personally be obliged to bear a some moral, karmic punishment as a result of that action.

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Thus far, Gen Gyatso’s response does not seem overly problematic. Certainly, he has opened the door to all kinds of activities in the name of aiding beings, but he has also noted that, before one reaches a quite high level of understanding, even one’s most rationally supported actions will involve some problems. He thus acknowledges that even bodhisattva politicians might miscalculate, and that the check on those miscalculations is, on the one hand, the primacy of empirical reasoning, and on the other, the emphasis on altruistic motivation. The upshot of this advice is that, using the best empirical reasoning available, the bodhisattva politician should take her best shot, and she should do so without any concern for the repercussions to herself; instead, she should only be concerned with the maximal benefit for the populace at large. To illustrate his point further, Gen Gyatso turns to a former life story of the Buddha—that is, a story of the Buddha when he was still just a bodhisattva. In many Buddhist cultures, these tales of the Buddha-to-be are often used to work out ethical problems. The tale concerns a figure named “Power of Compassion”: Previously, the Teacher, the Buddha, took rebirth as “Power of Compassion,” a seafaring captain. He and his companions had filled his boat with the inconceivable jewels that they had gathered, and they were now returning to port. A passenger named Evil Splinter, however, was determined to follow a certain bad intention, and he committed himself to killing Power of Compassion along with his companions. Through his clairvoyance, Power of Compassion learned of Evil Splinter’s intention, and he thought, “I would have no regrets if he were to kill me, but if he were to kill all of my fellow shipmates and then arrive at my our country, he would cause unbearable problems for the citizens, and in the end, he himself would be born in Avı¯ci, the lowest hell, where he would have to experience limitless suffering. If, however, I were to kill him, it seems that I would save the lives of my shipmates, and the citizens would also be able to live happily ever after. Therefore, for the sake of those citizens, even though I myself may be born in the lowest hell if I kill him, I will be able to bear it.” Thinking in this way, he became greatly moved, and he killed Evil Splinter. When he did so, due to his compassion and altruism he accumulated a limitless amount of merit (Passkey, 55).

As an illustration of Gen Gyatso’s point, this tale is especially useful because it so clearly indicates the way in which the various elements of that theory become, in combination, extremely problematic. First, we find the centrality of great compassion, whereby any act is permitted, as long as it is the most beneficial to the most beings. Second, we find the notion of privileged knowledge, here depicted metaphorically as “clairvoyance.” The point of this metaphor is that Power of Compassion alone had access to this knowledge, a point made more clearly in the canonical version of the story.24 Finally, this privileged knowledge is also powerful in practical terms, since

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it enables Power of Compassion to preemptively restrain Evil Splinter even before he is able to act on his evil intention. When I say that this story points to the problems in Gen Gyatso’s theory, I am thinking especially of the manner in which it would justify not an individual’s actions, but rather the actions of several persons of authority who see themselves in this fashion, for example, as compassionate persons possessed of privileged knowledge connected to power. I do not mean to object to the separate elements of the theory. It seems readily demonstrable, for example, that some persons may gain a level of mental clarity that makes their understanding of a situation particularly insightful, and while violence is difficult to control, I am willing to accept that lethal violence might be compatible with compassion in some exceptional cases. So too, it is not in itself problematic to say that clarity of understanding gives one the ability to manipulate one’s world in a powerful fashion. Instead, the problem is that, in combination, these elements lead to an authority structure that concentrates privileged knowledge in the hands of a few influential persons who feel fully justified in exerting their ability to implement or authorize lethal force. The point I am making might best be illustrated with an example. On March 20, 1995, two years before the assassination of Gen Gyatso, another murderous act was carried out in the name of what was allegedly a form of Buddhism. Shoko Asahara, the highest guru of Aum Shinrikyo, ordered some acolytes to release sarin nerve gas into the subway system of metropolitan Tokyo. Twelve people perished, and over 5,500 were affected, some sustaining permanent injuries.25 The motivation and justification for this attack rested on two principles: first, that Asahara possessed an ability to know what others could not know; and second, that “the guru and spiritually advanced practitioners” have a right to kill others when the irreligious actions of those others pose an extreme danger to both themselves and the spiritual community.26 Asahara claimed to have found especially the latter doctrine in Tibetan Buddhist texts, but Mark Juergensmeyer rejects this claim, saying instead that he doubts that “such a teaching is written in any Tibetan authentic Tibetan Buddhist text.” According to him, “It appears to be Asahara’s own concoction.” In fact, Juergensmeyer is wrong. The principles employed by Asahara are fully authentic to Tibetan Buddhism; it is precisely the doctrine illustrated by the story of the tale of the boatman, “Power of Compassion.”27 This is sad and ironic, for it is likely that those who ordered Gen Gyatso’s assassination used the same doctrine to justify their crime. They, too, claimed access to privileged knowledge that verified Gen Gyatso’s status as an enemy of Religion intent on catastrophic harm; for them, he thus became worthy of a compassionate killing at the hands of pliable young men wielding long knives.

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Hence, if we follow Gen Gyatso’s attempt to reconcile Buddhist principles with the political modernity of a democratic government, we find ourselves in a difficult and dangerous bind. On the one hand, it is clearly best for one’s government to be populated with persons who are constantly seeking to move rationally beyond the limited and erroneous perspectives that fuel their anger, greed, and uncontrolled desires. It is useful, in other words, to admit that most people are confused, and that we would prefer to be governed by persons who are less confused than we are. In acknowledging the possibility that some of our officials see the world far more clearly than we do, however, on Gen Gyatso’s model we are also admitting that their knowledge is privileged: We cannot verify their knowledge claims because their way of seeing the world is at this point beyond us. Indeed, if we could understand what they know, we could not cope with it emotionally, so they must compassionately protect us from that knowledge. Thus, in admitting the superiority of these officials’ knowledge and understanding, we would have to accept that we cannot distinguish between the wise bodhisattvas and the confused Asaharas of the world, since both make claims to privileged knowledge that we cannot verify. And if our governmental system gives a bodhisattva—or an Asahara—the authority to command lethal force, what shall we do when, as we are ordered to release the gas, he says, “Just trust me”? Perhaps, then, without denying the possibility that others have unique access to some crucial knowledge, we should wait until most of us can share in that knowledge before we decide to open the valve—or wield the knife.

NOTES 1. This is a rather obvious subtext of the introduction, Donald S. Lopez, Jr., A Modern Buddhist Bible: Essential Readings from East and West (Boston: Beacon Press, 2002), vii–xl. 2. Slavoj Žižek, On Belief, Thinking in Action (London: Routledge, 2001), 13, notes that “the ‘Western Buddhist’ meditative stance is arguably the most efficient way, for us, to fully participate in the capitalistic dynamic while retaining the appearance of mental sanity.” It enables the sane participation in that insane dynamic because it lets one “renounce the very endeavor to retain control over what goes on . . . [since for the Western Buddhist] all this social and technological upheaval is ultimately just a non-substantial proliferation of semblances which do not really concern the innermost kernel of our being.” 3. Gustavo Benavides, “Modernity,” in Mark C. Taylor, ed., Critical Terms for Religious Studies (Chicago: University of Chicago Press, 1998), 195. 4. In his essay, “Modernism,” in Guide to the Study of Religion, Willi Braun and Russell T. McCutcheon, eds. (London: Cassell, 2000), Wiebe focuses on “the modernity of the intellectual developments leading to the eventual ascendancy of science” because these developments “constitute a fundamental change of mentality from all

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previous traditional cultures—archaic, ancient or medieval” (354). To defend this sweeping claim, he draws especially on Timothy Reiss, The Discourse of Modernism (Ithaca, N.Y.: Cornell University Press, 1982), and Hans Blumenberg, The Legitimacy of the Modern Age (Cambridge, Mass.: MIT Press, 1983). Although Wiebe shows no awareness of Buddhism, all but one of the features that he highlights are typical of Buddhist thought as well. For example, in his account of Reiss he states that, “the [premodern] conjunctive mode of thought involves a form of ‘cognitive’ union with the divine while the modern, disjunctive mode of thought accentuates human responsibility for one’s being” (356). Reading Blumenberg, he comments that “moderns adopt a rational approach to the resolution of human problems rather than a passive acceptance of the promise of salvation; in so doing, they relate to a natural, rather than a supernatural, world open to scientific understanding. . . . [Thus,] modernity constitutes a break with the dominant theme of divine omnipotence in the Middle Ages, affirming by contrast the contingency of the world—a critical commitment to rationality both in knowing the world and in living in it” (356–57). We will see below that these features are clearly central to Buddhist thought. We will also see that the one feature of Wiebe and Blumenberg’s modern rationality that is explicitly rejected by Buddhist thought is “the separation between cognitive achievement and production of happiness” (358). 5. Benavides, “Modernity,” 195. 6. Citing Reinhard Bendix, John F. Wilson, Toby Huff, Ernest Gellner, and others, Benavides, “Modernity,” 195, notes: “if we ask ourselves why types of social arrangements that characterize Western modernity did not emerge in the Buddhist world, we must remember [their] warnings about modernity referring not to a clearly delimited formation but rather to a bundle of elements, not all of which can be expected to be present at the same time; above all, we must keep in mind that the emergence of Western modernity required the confluence of constellation of technical, institutional and ideological developments.” 7. What I mean by “epistemic practices” are those procedures used to obtain reliable or justifiable knowledge of one’s world. To say that such practices are “teleologically contingent” is to assert that the knowledge derived thereby is justifiable only in relation to some set of goals. Hence, what counts as knowledge in terms of one set of goals may be considered erroneous in relation to some other set of goals. I attempt to unpack some of these issues in John D. Dunne, Foundations of Dharmakirti’s Philosophy, Studies in Indian and Tibetan Buddhism (Boston: Wisdom Publications, 2004). 8. A ma’i bu la yon tan yod na / dga’ ldan khri la bdag po med /. All translations from the Tibetan are my own. 9. For a more detailed account of Gen Gyatso’s life up until exile, see idem., Memoirs of a Tibetan Lama, trans. Gareth Sparham (Ithaca, N.Y.: Snow Lion Publications, 1998). In an appendix Sparham includes his own account of Gyatso’s murder and the circumstances surrounding it. 10. Lobsang Trinley Dungkar [Dung dkar], Blo bzang ‘phrin las [The Merging of Religious and Secular Rule in Tibet] (Beijing: Foreign Languages Press, 1991). 11. Jonathan Z. Smith, “Religion, Religions, Religious,” in Taylor, ed., Critical Terms, 269–84. 12. Gen Gyatso often seems to struggle with the notion of “politics” as understood from a Buddhist intellectual’s perspective, and the subtext of that struggle

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must be noted. When I first met him in 1994, he struck me as a man who could run circles around nearly any opponent in a debate—this is an appropriate skill for a man who founded and guided a “School of Dialectics.” Nevertheless, in the present work on politics, his arguments strike me as far less convincing than his work in other contexts. Without going into detail, the lesson I draw is not that Gen Gyatso simply lacked expertise in this area, but rather that he, along with the vast majority of Tibetan Buddhist intellectuals, occasionally does not seem to know what counts as a good argument when writing on what we call “politics.” This brings me to the point of this aside: Gen Gyatso is on an uneven playing ground. He is attempting to play “our” game, that is, a game wherein Euro-American conceptions of politics, sovereignty, rights, and authority hold sway. He clearly knows that he must play by our rules, and he tries his best (but he sometimes fails). For us, this raises an important question: what does it mean for us to set the terms of the debate? Why is it that our Euro-American concepts of politics, statehood, human rights, and the like get to determine the context of discussions about the fate of Tibet and its people? Is this something with which we should be satisfied? Minimally, I think, it is an asymmetry that we cannot ignore, even if no remedy is readily apparent. 13. Bodhicaryavat¯ ¯ ara of Śāntideva with the Commentary Pañjik¯a, ed. P. L. Vaidya, Buddhist Sanskrit Texts, 12 (Darbhanga, India: The Mithila Institute of Post-Graduate Studies and Research, 1960), 1.28. 14. See Warren Smith, Tibetan Nation: A History of Tibetan Nationalism and SinoTibetan Relations (Boulder, Colo.: Westview Press, 1996), a minutely detailed, scholarly and even-handed account of relations between China and Tibet. 15. Melvyn Goldstein, A History of Modern Tibet, 1913–1951: The Demise of the Lamaist State (Berkeley: University of California Press, 1989), offers a thoroughly documented account of the ultimately disastrous religious politics in the Tibetan institutions of the early twentieth century. 16. Gen Gyatso repeatedly states the prime function of government (and hence, politics) is to protect its citizens’ rights (thob thang) and freedom (rang dbang). His discussion of just war (Passkey, 64) is a particularly interesting example of this position. 17. This is, I think, a very plausible reading of the approach to scripture found in the works of Dharmakı¯rti, a main inspiration for Gen Gyatso. See my Foundations of Dharmakı¯rti’s Philosophy for a more elaborate discussion of these issues. 18. For an engaging account of the Gelugpa educational system and its implications, see Georges Dreyfus, The Sound of Two Hands Clapping: The Education of a Tibetan Monk (Berkeley: University of California Press, 2003). 19. Dharmakı¯rti’s Praman ¯ av ¯ arttika ¯ with a Commentary by Manorathanandin, ed. R¯ahula S¯amkr˜ty¯ayana, Journal of the Bihar and Orissa Research Society, 24/3–26/3 (1938–1940), 1:222. 20. For an academic account based on traditional sources, see Tupten Jinpa, Self, Reality and Reason in Tibetan Philosophy: Tsongkhapa’s Quest for the Middle View, Curzon Critical Studies in Buddhism, 18 (Richmond, Surrey: Curzon Press, 2002), 176–83. 21. Śa¯ntideva, Bodhicarya¯vata¯ra of Śa¯ntideva, 9.3–4a, b. 22. Dreyfus, Sound of Two Hands Clapping, alludes occasionally to the role played by a hierarchy of views in this educational system. For Dreyfus, a major outcome

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is that the principal of a hierarchy of views tends to limit hermeneutical freedom (192–93). A similar function, I think, is to provide an authority structure rooted in one’s philosophical acumen: the greater the understanding, the greater the authority. Of course, other factors contribute to the strength of one’s authority, but philosophical understanding appears always to carry significant weight. 23. The injunction against teaching the philosophy of the highest school to those unprepared to hear it is a common theme. For a typical expression of this notion, see, for example, the Rtsa shes t¯ık chen by Je Tsongkhapa, founder of the Gelug tradition to which Gen Gyatso belongs: Rje Tsong kha pa Blo bzang grags pa, Dbu ma rtsa ba tshig le’ur byas pa shes rab ces bya ba’i rnam bshad rigs pa’i rgya mtsho (Varanasi, India: Vâna mtho slob dge ldgan spyi las khang [Gelug Student Welfare Committee of the Central Institute for Higher Tibetan Studies], 1992), 12–13. 24. For an English version of the canonical story, see Garma C. C. Chang, gen. ed., A Treasury of Maha¯ya¯na Su¯tras: Selection from the Maha¯ratnaku¯t˜a, trans. by the Buddhist Association of the United States (Delhi: Motilal Banarsidass, 1991 reprint of 1983 ed.), 455–57. In the canonical version, which occurs in the “Sãtra on Skill in Means” (Upa¯yakauśalyasãtra), “Power of Compassion” receives the information about Evil Splinter from a certain sea spirit who comes to him in a dream. This knowledge is thus obviously unique to him—one hopes that it was not what we might call “faulty intelligence.” 25. Mark Juergensmeyer, Terror in the Mind of God: the Global Rise of Religious Violence, Comparative Studies in Religion and Society, 13 (Berkeley: University of California Press, 2000), 103. 26. Juergensmeyer, Terror in the Mind of God, 114. 27. The doctrine is systematically elaborated in a number of places, including the commentary on the bodhisattva ethic, the Byang chub gzhung lam by Je Tsongkhapa. See Rje Tsong kha pa Blo bzang grags pa, Byang chub sems dpa’i tshul khrims kyi rnam bshad byang chub gzhung lam. Vol. ka in Gsung ‘bum [‘Collected Works], (New Delhi: Mongolian Lama Gurudeva [sponsor], 1978–1979; photo-offset of old Zhol edition [Lhasa: sponsored by Byams pa dngos grub and Skal bzang don grub, 1897]), for example, see 76a–78a. The doctrine amounts to the claim that, in order to prevent the particularly catastrophic outcome of some harmful act, a bodhisattva is permitted—or on some accounts, even obliged—to kill the person(s) who would otherwise commit that harmful act. It is important to note that, while privileged knowledge is always assumed by this doctrine, it is often stated only obliquely as a necessary part of the doctrine’s context. In Je Tsongkhapa’s version, however, the privileged nature of the knowledge in question is actually quite clear. Indeed, on his view, the requisite knowledge is so high as to make the doctrine inapplicable in the vast majority of cases. In this regard, Je Tsongkhapa appears to take a far more cautious approach than Gen Gyatso.

Conclusion Leonard V. Kaplan and Charles L. Cohen

Attempts to capture the dynamism between liberal theory and theology encounter immediate difficulty. Partisans of different positions often talk past each other or refuse to engage, while the perceived political consequences of allowing theology to inhabit arenas long considered liberalism’s preserve have led some commentators to brand others as cowards, fascists, or worse. In these circumstances, debate becomes not a collective conversation intended to reach a synthesis but an opportunity to destroy an adversary who has become the Adversary. Interest groups and theoreticians who carefully attend the connections between liberalism and theology often fail to question their own assumptions, thereby missing important aspects of the intersection. To their credit, the authors in this volume face the challenges of assimilating liberal and theological discourses squarely and without vituperation. Intent on their particular points, however, none of them is in position to raise some of the larger questions surrounding the entire project of integrating liberalism and theology. Our conclusion rehearses these issues to put the entire book itself in a larger context. These chapters in general assume the desirability of taking theological approaches to liberalism, a predilection we share but that warrants examination. What is liberalism? What are the pitfalls to essaying such a project? Why, for that matter, undertake it altogether? To make some sense of these matters, we focus on critiques of liberalism, how theological concepts infuse contemporary political philosophy, some difficulties in reconciling theology and liberalism, and the insights that modern contributions to political theology might bring to the debate. In the process, we touch on such theological categories as transcendence, immanence, and messianism. These terms fit the grammar of Jewish and Christian theology but are also 363

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latent within the Western philosophical tradition, which is more secular. Theorizing about the liberal state, we would argue, has relied on Jewish and Christian theological impulses, hence any attempt to excise theology from political philosophy is impossible. Much of the effort to affect a synthesis or at least a rapprochement between the two misses the point that theology already grounds our form of liberalism, declarations of liberal commitments to secular humanism notwithstanding. We should begin by clarifying our meaning of liberal and liberalism. Few of the contributors define these terms explicitly, but, taken together, they create a tacit consensus: liberalism is a political philosophy that is widely assumed to have excised theological postulates and that is instantiated in polities (“liberal states”) that feature an emphasis on the rights and liberties of the individual over competing claims, including those of the government itself; easy access to membership in the polity and citizens’ extensive participation in political decision making (though the particulars have of course varied over time and place); a framework of fundamental law that constrains all of the state’s agents; and a set of constitutional ground rules that allow disparate constituencies access to power to the extent that they can mobilize within the state apparatus. The heart of liberal theorizing concerns the definition of individual rights and the state’s role in protecting those rights; analyzing such issues depends not only on how one views the sources of individual rights but also on how one conceives the state itself. The value that one might place on glossing liberalism with theology depends on the extent to which one considers the state an ethical entity. To some, the state serves primarily to arbitrate competing claims of rights so as to maximize individual initiative, a perspective that can render theology irrelevant. Russell Hardin has recently rehearsed this position. Hardin posits that the liberal state can best be understood as a pragmatic political structure whose foremost tasks include coordination—making sure that traffic flows efficiently, for instance—and protecting market operations in the name of freedom of contract. He gestures at the idea that the state has ethical responsibilities but subsumes them to the view that it is an instrumentality organized to further individual enterprise. He postulates ethical values for evaluating policy implicitly but does not bring them to the forefront, leaving little room for theological reflection on the nature of human beings or on defining the ultimate goods toward which the state might move. Hardin minimizes the degree to which theology can contribute anything to understanding how the liberal state operates.1 If, however, one thinks about the state as an ethical formation obliged to advance rights forcefully, theology might become more pertinent. One can, according to Shlomo Avineri, read G. W. F. Hegel in precisely this way.2 At first glance Avineri’s Hegel mimics many modern liberal theorists by removing God and theology from his analysis; the Zeitgeist is not an agent of

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divine providence but the builder of bureaucracies. Yet Avineri also posits that Hegel made philosophical anthropology central to his project and thus surmounted instrumentalism by ruminating on what impact life in the state has on its citizens. Long before Durkheim—indeed, before Marx—Hegel had grasped the condition of human alienation in mass society: capitalist production distances people as both producers and consumers from the products of their labor as well as putting their livelihoods at risk contingent on the market’s whims. In consequence, Avineri goes on, Hegel charges the state with propelling the economy when necessary and aiding individuals during market dislocations. In this rendition, Hegel’s state resembles a liberal one in its focus on the individual citizen as a category of analysis along with its valorization of free speech and the right to individual worship. To be sure, this construction is not entirely consonant with modern liberal pluralism; Hegel solved the problem of disparate values in his mass state by excising as many differences as possible for citizenship, including religion, ethnicity, and language. But to the degree that Hegel’s ethic was directed toward the individual’s well-being and self-development within a market space, it partakes of central liberal concerns. At the same time, it is an emphatically ethical construction. The state for Hegel must be structured for the common good, limned here in terms of its obligation to regulate its citizens’ material well-being. Moreover, the state takes shape through the ministrations of a spirit that, if not carrying out God’s plan for salvation, marches humanity in a dialectical teleology toward a consummate synthesis of philosophical self-knowledge and sociopolitical concord. The step between teleology and theology is a small one, intellectually as well as orthographically. Hegel stands at the threshold of insinuating theology into liberalism—at, as it were, this book’s frontispiece. Marrying theology and liberalism may, however, require a shotgun. Much of twentieth-century liberalism dismissed such speculation a priori, and even those willing to at least countenance the liberal state as a valueladen construction did so in terms derived from humanistic perspectives rather than “God talk.” At century’s end, however, such positions had in the United States been deemed increasingly insufficient by religious pressures to identify the United States as a Christian country and the academic recovery of theorists uncomfortable with instrumentalism. These two perspectives opened the door for reconsidering theology as a source of values for defining the state’s proper ends and the policies evolved to attain those ends. Theology, both would argue, can deepen the sense of what constitute the liberal state’s abiding values. Yet to invoke theology immediately resurrects centuries-long fears of religious conflict and oppression, bugbears that the framers of the American Constitution hoped they had entombed and that the “new atheists” fear will rise again. This book, we hope, has essayed

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the messy middle ground that situates liberalism between blind faith and blind faithlessness.

CRITIQUES OF LIBERALISM Before the liberal state was the liberal individual, the subject living in a Lockean state of nature already endowed, as Jefferson put it, with “unalienable rights.” The liberal state rests on a construction of human beings that exalts their autonomy and aspirations coupled to the assumption that a polity confabulated from such atoms can maximize their economic welfare and secure their freedom. Critiques of the liberal state as the political form that allows individuals to enjoy “life, liberty and the pursuit of happiness” have followed at least three principal courses. The first charges that, in exalting the unfettered will as an end in itself, liberalism fails to provide a cogent scale for choosing between alternative goods; the greatest value lies in the ability to choose, not in the character of what is chosen. The second alleges that portraying the state as comprising simply the mechanism that protects the rights of individuals maximizing their autonomy cannot account for how deep cultural forces constrain personal action. The third maintains that liberalism’s exaltation of the individual fails to articulate a vision of collective obligation, thereby loading each person with sole responsibility for achieving his or her own happiness. From different starting points and political perspectives, the second and third positions contend that the liberal state generates a pervasive sense of alienation that afflicts even—indeed, most particularly—the most wealthy and open societies. Liberal thinkers posit human beings who are first of all voluntarists. From Thomas Hobbes on, they have stressed the will as the predicate for thought and action. This depiction of human nature immediately raises the problem, broadcast by pragmatism’s technique of developing political and jurisprudential positions on the basis of their “practical effectiveness” rather than on the merits of their ends, of how to value the will’s options.3 On what basis is one choice or policy more beneficial (which is not the same thing as effective) than another? As Roberto Unger and, before him, the Frankfort critics have pointed out, liberal reason can only be instrumental;4 it can help us get what we want but it cannot dictate the limit or direction of what we should want. Lenn E. Goodman’s contribution to this volume makes a similar case. How, then, can one define the good toward which the state should direct policy? Here is one arena in which theological discourse might engage with liberal politics. Whatever else it may bring to the table, theology emphatically claims to provide divinely inscribed first principles on which to construct political action. Though they may disagree

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among themselves, theologians do not shy from dogmatizing individuals’ worth or establishing absolute moral boundaries for determining policy. Theology’s insistence on casting political conversation within a framework of what God demands of and for human beings keeps issues of what is good central to political debate and action—though how to adjudicate such infinite claims within the finite purviews of human institutions is a subject liberal scholars have only begun to address. A second critique, exemplified by the Frankfort School and typically associated with the political left, argues that the scope of individual action limned by casting the liberal state as an association of autonomous individuals jealous to defend their individual rights masks how deep cultural structures—the assumptions, ideologies, directives, and values that underlie social action—conspire to frustrate and constrain that autonomy. In this view, the issue is less that liberalism provides no moral compass for deciding on what is good than that the individual cannot achieve the good, however one may define it, because individual action is necessarily deflected or subverted by deep cultural forces impervious to individual control or ken. Thus, writers like Theodor Adorno, Max Horkheimer, and Herbert Marcuse called upon Sigmund Freud and Karl Marx to contend that culture could constrain thought and create conditions of false consciousness, trapping people into decisions and positions against their own interests.5 Both authoritarian personalities swept into fascism and one-dimensional men inhabit a world in which the allegedly autonomous conscious will is really the tip of an iceberg that moves only where a submerged mass of psychological, economic, and political structures drive it. Dissonance between the individual’s protests that one’s “self” is really in control and the dim perception that in fact it is not occasions the unease that results in either a rush to embrace totalitarian answers or anomie. In either case, the liberal state’s autonomous actor is nowhere in evidence. The political right advanced a third critique, associated with such thinkers as Carl Schmitt and Leo Strauss, who beat the modern world with antiquity’s philosophical stick.6 To them, modernity meant first of all that civilization’s be-all and end-all consists in proclaiming the triumph of capitalistic production subserved by technological advancement. Moderns, they scorned, kneel before the idol of consumption and parade as proselytes of self-fashioning who mistake the capacity to function in the marketplace as authentic freedom, thereby losing any sense of communal obligation. Against this dystopia, Schmitt and Strauss posited a social contract rejecting the liberal covenant of individuals aligned to mutually protect their lives and sacred honor (not to mention their property) in favor of a dense web of social institutions and cultural practices that not only defend their denizens’ material interests and give meaning to their lives by embracing them within a network of values defined by communal tradition and consensus

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rather than personal volition. Though sometimes mortally opposed, the left and right critiques agree that life in the liberal state has given itself over to entertainment and shopping, at the cost of lost moral authority, widespread cultural malaise, and individuals’ impotence (absent a supportive community) to defend themselves against the state. Taking the individual rather than social or cultural relationships as the primary category of analysis, apologists for the liberal state have nothing to offer citizens against the slings and arrows of outrageous fortune. That these critiques, left and right, have gestured in the direction of totalitarian regimes whose brutal histories bloodied the twentieth century does not negate their indictment of liberal theory as neglecting the communal good and failing to address the loss of meaning, both of which contributed to totalitarianism and anomie. Charting how the state can achieve the communal good has exercised philosophers and theologians since ancient times, and though liberal theory has subordinated the public to the private good at least since the eclipse of republicanism (civic humanism) two centuries ago, theorists like Dana Villa seek to reinvigorate such inquiry.7 The Jewish and Christian traditions have a long history of contemplating polities as sites for encouraging public rather than private good, so it is tempting to transfuse theories of the liberal state with theological blood. Many of the chapters here make this case, a few—like David Novak’s, Nicholas Wolterstorff’s, John Milbank’s, and Aviezer Ravitzky’s—from specific theological commitments. Yet questions remain. Classical liberal theorists dealt with states that were, politically and culturally, Western European (most notably Anglo-American), their structures shaped by a shared discourse inflected by Christianity. In the contemporary world, however, liberal states have arisen that are geographically, culturally, and religiously far from the classical Anglo-American Christian nexus, witness the chpaters by Ravitzky on Israel, Ayesha Jalal on Pakistan, and Lobsang Sangay on the constitution of the Tibetan Diaspora. How will liberal theorists deal with polities that develop within different religious environments embedding theological presumptions different from Western Christianity, especially Protestantism? Moreover, why should we assume that theology can affect a liberal state more attuned to the common weal than can “secular” political philosophy?

THEOLOGY’S INFUSIONS WITHIN POLITICAL PHILOSOPHY Mainstream modern political philosophy is professedly a-theological. Conceiving of history as open-ended, a non-teleological process uninfluenced by divine plans, it frowns on invocations of theodicy and transcendence. This stance appears among liberal thinkers as a matter of course—recall Jer-

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emy Bentham’s claim that natural law is nonsense on stilts—but it surfaces as well in nonliberal philosophers like Martin Heidegger, who argued that attempts to ground metaphysics, and, by extension, theology, were mistaken. Being for Heidegger is merely Being, so that one can construct neither philosophical nor theological order through metaphysical assumptions. Being is necessarily open and grounded in neither faith nor the Good.8 His position enabled a radical historicism that defeated any attempt to ground ethics or politics and whose influence survived his later disgrace. Nevertheless, liberals and their critics are seldom as free from theological constructions as they suppose, frequently deploying theological concepts implicitly, yet tellingly. Karl Marx constructed what amounts to a theodicy in which the working class acts as the agent of dialectical redemption, though he would have denied having done so, while Friedrich Nietzsche evoked an apocalyptic end of days that seems exquisitely Christian—albeit without Christ’s thousand-year reign and the New Jerusalem’s descent. A consonant example from modern liberalism is the use of natural law bereft of the Christian anthropology inherent in the concept’s proof text, Romans 2:15. Thinkers like Lon Fuller and Ronald Dworkin invoke natural law without alluding to the Lord who inscribes it in the heart,9 thereby advancing, they suppose, a nontheological proposition, but in doing so they assert that natural value inheres in law itself, that is, that a God-like protection of grounded value is immanent in law. They may dispense with God but not with the presumption of absolute stability for their foundational concept, which God provides in more openly theological systems. John Rawls in his universalizing phase provides another case. Liberal jurisprudence, in Rawls’s scheme, rests on a set of values established by a predetermined consensus for theoretical direction.10 These values are transcendent in the sense of existing prior to categories created by political experience; they are the agreed-upon presuppositions that guide juridical thought. “Transcendent” is, of course, a theological term, connoting (in Judaism and Christianity) a God beyond humanity who is also immanent, manifest within the created universe even as “He” exists outside it. Whether avowedly liberal or “Judeo-Christian,” values generated by means that are transcendent and immanent promise unassailable postulates formulated by a hyper-human force, consensus or God. Sometimes, to be sure, political theorists do evoke theology more explicitly, perhaps most notably in discussions of the Weimar Republic and its descent into Nazi hegemony and Holocaust, which seem to scream for theological reflection. Trying to make sense of these events, commentators like Leo Strauss and Emmanuel Levinas broke with Heidegger and opted for analyses redolent of ancient commitments to theological principles.11 Strauss and Levinas, as Leora Batnitzky has reminded us, invoked Moses Maimonides, the great medieval Jewish philosopher who effected his own

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controversial synthesis of Greek philosophy and Jewish theology.12 Such efforts are not novel, since philosophical and theological treatments of the state in Western thought have long been aligned in positing that the state exists for some final good, but they are not normative. Nevertheless, while meditating on this history, one might claim that liberalism constitutes an aspect of Western theology that brackets God-terms but cannot do without them. Liberal theory may obscure the ancient struggle of the relationship between revelation and reason but has not extinguished or suppressed it. Indeed, Ian Hunter argues that modern European philosophy has operated within a predominantly Christian framework, making theology, whether expressed or not, a cornerstone of its project. The dignity of the individual fundamental to liberal thinking is grounded not in philosophical reflection on human nature, he maintains, but in revelation.13 According to Jeremy Waldron, John Locke, one of liberalism’s founding fathers, establishes his case for human dignity and equality on biblical revelation. Waldron asserts that Locke can stand for the egalitarian distribution of property or recognition of individual dignity only from a theological ground that we are all made in God’s image and therefore equally entitled.14 At its core, liberal theory necessarily engages with theological predicates impossible to excise—which does not, however, mean that resolving the tensions between them is easy. Whatever its inbred theological substrates, modern liberalism dismisses the transcendent as a coherent category and rejects arguments from supernatural postulates as innately absolutistic, hence dangerous to liberty. Anyone wishing to incorporate theological postulates into liberal theory will have to reckon with how to import totalizing claims into a political philosophy that instinctively decries them.

DIFFICULTIES IN RECONCILING LIBERALISM AND THEOLOGY Reconciling liberalism and theology is difficult for reasons having to do with the instabilities within both liberal and theological discourses as well as with the problems of harmonizing their radically discrepant perspectives. Liberal theory is no monolith. Classical liberalism emerged within the political cultures of early modern (particularly Protestant) Western Europe and took their structures, including a framework of Christian values, as normative. In an era of transnational economic integration rudimentary by today’s standards and the absence of international bodies like the United Nations, liberal theory rightly assumed that individual states are independently sovereign and control their internal affairs subject only to the efficiencies of their own governments. But in a world of economic interconnection in which a tremor in one part of the web immediately agitates distant sectors, does this assumption still hold? Interrogating the limits and

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connections of liberal state theory with theology (or any discourse, for that matter) must first confront the real possibility that liberal states (or any states, even those as illiberal and willfully isolationist as North Korea) may no longer exercise sovereign control of their own economies or politics. Liberal theory will have to incorporate the impact of globalization into its analysis prior to engaging theology lest it mistakenly project its Western Christian roots into political cultures imbued with different theological premises and historic relationships between “church” and state. For its part, theological reflection is no more monolithic or internally consistent than liberalism; witness the radical divergence between Judaism and Christianity over the identity of the Messiah. Commentators from within a tradition, not to mention those from different religions, often define the same term discrepantly. Furthermore, globalization poses the same issues for generalizing about liberalism’s latent theological predicates that it does for dealing with the assumption of the independently sovereign state. If liberalism embeds certain Protestant assumptions, how will it operate in, say, Islamic territories, where grace is not a major theological concept let alone a counterpoise to religious law, and where religious law itself derives from the centuries-long contemplation of a revelation thought by its believers to supersede, or at least culminate, Judaism and Christianity? For that matter, how should we understand how liberalism operates within even its own Western heartland, whose polities have enshrined rather varied constitutional understandings of the relationship between ecclesiastical and civil bodies? The American Revolutionary Settlement of Religion outlaws the United Kingdom’s watered-down Erastianism or Germany’s state-supported church, yet all three are liberal states. How can we think effectively about importing theology into liberal polities without taking cognizance of significant constitutional variations, a problem that moving the locale beyond the United States and Europe will only magnify? The issues are sufficiently complex that a multidisciplinary analysis is mandated. Every academic field of inquiry has its particular concerns, standards, constituencies, and methods, each of which has its own validity but which, like the blind men of Gotham, reveal only part of the elephant. Integrating liberalism and theology calls for interdisciplinary work. We have tried to put our method where our mouths are by bringing together in this volume philosophers like Nicholas Wolterstorff, lawyers like Anne Althouse, David A. Skeel, Jr., Lobsang Sangay, Elizabeth Mensch, and Carl J. Rasmussen, and humanists like John Milbank, Regina M. Schwartz, and John D. Dunne with theologians like David Novak and Aviezer Ravitzky. Yet even if one can stabilize liberal and theological models, resolving the former’s epistemological commitments to reason and the latter’s to revelation will be challenging, witness the example of Leo Strauss. Strauss’s openness to theology and his recent appropriation by American neoconservatives have

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given him an illiberal reputation. He deserves a more sympathetic hearing, however, because his distaste for modernism proceeded from an abiding fear that the Weimar Republic’s demise portended the metastasizing of fascism into other liberal body politics. Since fascism, he believed, festered in the vacuum left by modernity’s assault on revelation as well as reason, he sought to shore up both sources and enlisted Maimonides in the effort.15 Trying to synthesize revelation and reason, Maimonides concluded that both had limits for apprehending God clearly. At best rationality can merely intimate the beyond, and revelation cannot take us much further; even Moses, called into God’s presence at Sinai, saw only His back.16 For his part, Strauss privileged reason as the greatest defense against the loss of individual liberty, but he invoked theology because only in dialogue with revelation could philosophy prove its worth. While admiring the seriousness of Strauss’s effort, one might nevertheless question how authentically theological it was. Strauss did not practice Orthodox Judaism, nor did he incorporate received Jewish law into his analysis. He did not, in other words, speak from what many rabbis would accept as a legitimate theological commitment. Synthesizing reason and revelation first requires a familiarity with the two epistemologies in their own terms even before one begins to address their dissonance. Liberal suspicion of theology has some merit; theological positions can be yanked out of context. Theologians are no different from philosophers in staking claims on assumptions chosen according to their personal predilections. They charge theological postulates that support their positions with the full power of absolute rightness without confronting or even acknowledging contradictory propositions. At the same time, many now appropriating wisdom from theology for politics may, like Strauss, be operating outside received or traditional religious law. One might, then, be tempted to reject theology entirely, though we would counsel against that course, because doing so is both impossible, given liberalism’s embedded theological predicates, and dangerous, since leaving theological terms lurking in the shadows allows them more influence than does exposing them to daylight. Theology can, after all, uphold liberalism as well as to undo or pervert it. Many critical thinkers who experienced Weimar firsthand understood the political implications of deploying theology to oppose fascist postulates. Karl Barth, Franz Rosenzweig, and Emmanuel Levinas disputed fascism, Samuel Moyn asserts, by framing it as a pagan attempt to render God as immanent rather than transcendent. German fascism, they insisted, presumes that God personally communicates to particular nations and has taken up residence within the Volk. In opposition, they reaffirmed that God is transcendent and cannot reside in any material form; claiming His immanence within a single nation constitutes idolatry, the worship of the German people.17 Liberal theorists will need to recognize implicit as well as explicit theological usages and engage them on their own terms.

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POLITICAL THEOLOGY Deploying theology to critique politics is an ancient practice. Whereas eighteenth- and nineteenth-century political thought was frequently framed as political economy, some of the earliest thinking about politics operated through a theological lens. The prophet Samuel, enraged at Israel for wanting a king, promised that monarchy would transgress God’s wishes and bring only war and taxes. St. Paul parsed what belonged to Caesar and what to God. Recently, the term “political theology” has resurfaced as a category of analysis. Scholars have contested its meaning and the degree to which it may overlap, displace, or replicate realms of political philosophy, but here it suffices to say that it intends interpreting worldly politics from the standpoint of revelation. The domain of political theology has implications for theorizing about the possibilities for integrating theology with liberalism, and assessing three major lines of inquiry in the field will help concretize the general points we have been raising. Perhaps unsurprisingly, modern political theology has supported positions on the political left, liberal center, and right. The left-wing version is anchored in the early work of Walter Benjamin and his intimate friend, Gershom Scholem, who glossed Marxism and Zionism with the Jewish canon. We can summarize their position quickly, if only because of its realworld inutility. From the Tanakh Benjamin and Scholem derived a religious grammar that they believed could make all political narratives intelligible. A deeply ingrained messianism informed their analysis, coupled with a respect for the utopian urge within Marxist politics. In the end, however, this commitment trumped the possibility of anyone’s ever constructing a truly practical politics. The messianic promise comes from God, hence the moment of the Messiah’s appearance depends fully on divine intervention and occurs independently of human action. Scholem in particular came to accept that messianism precluded the success of any human-driven reformation, no matter how noble its intention. Utopia—whether a new Israel or the dictatorship of the proletariat—will come only when God wills.18 The centrist, liberal version is spelled out in the recent work of Jeffrey Stout, a communitarian sensitive to the forces undermining social networks around the world who also appreciates both the reality of evil and the reasons why theological propositions attract so many as the only anodyne against social fragmentation and despair. Stout argues that liberal society, which he differentiates from the liberal state (that is, the bureaucratic apparatus of governance), has no need to exclude proponents of what he considers “non-pernicious” theology. Liberal society, he further maintains, can effectively maintain its social, economic, and ethical integrity without the necessity of recognizing the absolutism of claims based either on traditional appeals to revelation or Platonic theses about the existence of a

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single common good. Appeals to the transcendent are perfectly intelligible without having either to insist on or deny the fact of God’s existence; what matters are the practices that derive from an assumption of God, not the assumption’s validity. At the same time, hypothesizing the existence of a single good toward which society should move misses how communities can and do develop competing excellences each of which benefit particular groups but do not yield to a single all-inclusive synthesis. Stout envisions a tolerant polity that can accommodate varieties of religious expression without flying apart. A proponent of deliberative democracy, a theory that seeks to diffuse the problem of majoritarian bias by positing that each individual possesses the intrinsic dignity and worth to have his or her position recognized, he upholds the legitimacy of all expressiveness in civic discourse. At the same time, he understands liberal society not as the sum total of individuals but as a network of discursive communities who, on the basis of critical reason, develop cohesive standards for their members and who collectively police civil discourse by tagging outlying opinions as illegitimate. Stout is looking in effect for a liberalism beyond liberalism, a theory that accepts theological propositions without according them the discursive primacy that their claims would normally suppose.19 Stout’s vision betrays liberalism’s classic strengths and weaknesses: on the one hand, a high valuation of inclusiveness and multifaceted discourse, and, on the other, an overly sanguine view about the possibility that civil discourse can ever be entirely open, coupled with an overestimation of its benefits even if it can. Political realities argue that civil discourse is never completely open because the unequal diffusion of power and wealth affords some groups greater access to channels of communication than others, thereby according their views greater exposure. In a world where, as Stout recognizes, the control of communications is relatively concentrated, and where influence over even democratically elected representatives depends heavily on gaining their attention through money and favors, how will the deliberative communities on which he bases such hope actually form? The Internet is one possibility, though whether it can genuinely influence political decision making remains to be seen. Yet even assuming that competing opinions do enjoy relatively equal access to the public square does not guarantee that including theological positions will occasion greater comity. Stout places great weight on “non-pernicious” discourse. But who determines what is non-pernicious? One person’s “pernicious” is another person’s “orthodoxy,” and not all orthodoxies value the intrinsic dignity of all individuals on which Stout’s deliberative democracy depends. In recent American politics, conservative theologies upholding traditional views of family, sexuality, and women’s roles have taken center stage. Their sanctimoniousness, not to mention their legislative and judicial remedies, divide and discriminate. But are they

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pernicious? They do, after all, issue from the kind of discursive communities that deliberative democracy legitimates. The irony of Stout’s vision is that its best workings may generate the very forces it seeks to constrain. The most powerful right-wing version of political theology was developed by Carl Schmitt, at first a conservative critic of Weimar liberal jurisprudential theory and ultimately an unrepentant Nazi apologist. Schmitt claimed to understand politics as an autonomous area of intellectual study, much as Max Weber did sociology and Hans Kelsen did law, but his manifest project masked latent theological biases. Central to Schmitt’s politics is the proposition that human life can be lived fully only when engaged in a mortal struggle against enemies of the state. Absent such conflict, the state becomes a soulless bureaucracy whose citizens live out their days without spirit, freedom, or vitality. Schmitt’s politics, contends Heinrich Meier, emerged from a priori commitments to revelation over reason and to the belief that one should not simply defeat one’s enemies (since they advance different ideologies and pursue different interests) but annihilate them. It is not difficult to glimpse behind this language the armies of the godly marshaling against the minions of Antichrist.20 Like Weber, Schmitt feared the impact of bureaucratization on the human spirit, but where Weber hoped that the liberal state might muddle through under the auspices of a charismatic leader, Schmitt thought it anachronistic and irreparable. He took his evidence from the Weimar Republic, whose political corruption, legislative paralysis, an ineffective executive, an impotent constitution, and rampant inflation he abhorred. These failures, political and administrative, were real enough, but Schmitt’s loathing went deeper, for to him Weimar represented the culmination of the Enlightenment and its devastating impact on the human spirit. Schmitt blamed Enlightenment rationalism for having jettisoned the state’s theological underpinnings and vitiated its mission to combat its deadly enemies. The result was a republic that promoted nothing but toleration and the mindless pursuit of wealth, thereby sapping its citizens’ vitality, creating the conditions for universal enslavement, and accommodating Antichrist. Schmitt’s remedy drew on his confidence that German Christianity provided the spiritual resources for vitalizing politics by rolling secularization back coupled with an authoritarian politique headed by a charismatic leader who, unlike Weber, Schmitt liberated from liberalism’s checks and balances. He drew in part from his legal background, arming his Führer with unlimited power justified by references to Roman jurisprudence, in which the sovereign, unfettered by constitutional restraints in times of crisis, rules above the law. But law does not alone configure Schmitt’s state, for his theological vision, in which the state itself becomes a holy object, ensures that it will always be in crisis and thus always calling on its ruler to demand that his countrymen dedicate themselves to eradicating their enemies—whom Schmitt readily

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identified as liberals, Bolsheviks, capitalists, Jews, and their ilk. The sacred struggle to defeat them invigorates the state and its legitimate citizens. Schmitt’s political theology of fascist totalitarianism needs no refutation here. The Holocaust suffices. Yet his concern that liberalism uninformed by theology leads only to market-driven instrumentalism and a polity that exempts itself from enriching the human spirit may overvalue profits and discount human suffering is cogent even if his particular solution is repellent. Putting a square theological peg into a round liberal hole will be hard. Liberalism at best is a compromise-formation, invoked in the aftermath of religious carnage to banish theology from political discourse. But theology, like the poor, will always be with us, and we will have to come to terms with it one way or another. An old Talmudic tale makes clear that, even with God’s personal testimony, humanity will do what it wants and has to take responsibility for itself, at least in this world. God told Adam to name the animals. We are still naming them. At least we should get our naming right and in order, Babel notwithstanding.

NOTES 1. Russell Hardin, Liberalism, Constitutionalism and Democracy (New York: Oxford University Press, 1999). 2. For this paragraph and the next, see Shlomo Avineri, Hegel’s Theory of the Modern State (London: Cambridge University Press, 1972). 3. Richard Posner, Law, Pragmatism, and Democracy (Cambridge, Mass.: Harvard University Press, 2003). 4. Roberto Mangabeira Unger, Knowledge and Politics (New York: Free Press, 1976). For the Frankfort School, see note 5. 5. Max Horkheimer and Theodor W. Adorno, Dialectic of Enlightenment, trans. John Cumming (New York: Herder and Herder, 1972); Herbert Marcuse, Eros and Civilization: A Philosophical Inquiry into Freud (Boston: Beacon Press, 1955), and One-Dimensional Man: Studies in the Ideology of Advanced Industrial Society (Boston: Beacon Press, 1964). 6. For citations to Strauss, see notes 11, 15, and 16; for Schmitt, see note 20. 7. The literature on republicanism is vast; for a classic account, see J. G. A. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton, N.J.: Princeton University Press, 1975). Dana Villa, Arendt and Heidegger: The Fate of the Political (Princeton, N.J.: Princeton University Press, 1996). 8. Martin Heidegger, Being and Time, trans. John Macquarrie and Edward Robinson (New York: Harper, 1962). 9. Lon L. Fuller, The Morality of Law, rev. ed. (New Haven, Conn.: Yale University Press, 1969); Ronald Dworkin, Taking Rights Seriously (London: Duckworth, 1977). See also Neil Duxbury, Patterns of American Jurisprudence (New York: Oxford University Press, 1995).

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10. John Rawls, A Theory of Justice, rev. ed. (Cambridge, Mass.: Belknap Press, 1999). 11. Leo Strauss, Natural Right and History (Chicago: University of Chicago Press, 1953); Emmanuel Levinas, Nine Talmudic Readings, trans. Annette Aronowicz (Bloomington: Indiana University Press, 1990). 12. Leora Batnitzky, Leo Strauss and Emmanuel Levinas: Philosophy and the Politics of Revelation (New York: Cambridge University Press, 2006). 13. Ian Hunter, Rival Enlightenments: Civil and Metaphysical Philosophy in Early Modern Germany (New York: Cambridge University Press, 2001). 14. Jeremy Waldron, God, Locke and Equality: Christian Foundations of John Locke’s Political Thought (New York: Cambridge University Press, 2002). 15. See Daniel Tanguay, Leo Strauss: An Intellectual Biography (New Haven, Conn.: Yale University Press, 2007). 16. Leo Strauss, “Introduction,” to Moses Maimonides, The Guide of the Perplexed, 2 vols. (Chicago: University of Chicago Press, 1963), 1: xi–lvi. 17. Samuel Moyn, Origins of the Other: Emmanuel Levinas Between Revelation and Ethics (Ithaca, N.Y.: Cornell University Press, 2005). 18. Eric Jacobson, Metaphysics of the Profane: The Political Theology of Walter Benjamin and Gershom Scholem (New York: Columbia University Press, 2003). 19. Jeffrey Stout, Ethics after Babel: The Languages of Morals and Their Discontents (Boston: Beacon Press, 1988); Democracy and Tradition (Princeton, N.J.: Princeton University Press, 2004). 20. Heinrich Meier, The Lesson of Carl Schmitt: Four Chapters on the Distinction between Political Theology and Political Philosophy (Chicago: University of Chicago Press, 1998). See also Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, trans. George Schwab (Cambridge, Mass.: MIT Press, 1985), and The Concept of the Political, trans. George Schwab (Chicago: University of Chicago Press, 1996).

Index

Abbasid caliphate, 15 Abbott, Lyman, 167 Abel, 18, 150, 325, 333 abortion, 32, 41, 45–46, 49, 111, 161, 171–72, 294 Abraham, 328, 338–39 Abrahamic tradition, 19 Abrabanel, Yitzhak, 264, 267 Adam, 109, 149, 293, 339, 376 Adler, Felix, 70, 76 Adorno, Theodor, 367, 376 adultery, 326–27 Afghanistan, 286–87 agape, 13, 122, 222, 246, 249, 250 aggadah, 256–57, 262 ahimsa, 301 alcoholism, 30, 172 All-India Muslim League, 278, 288 Althaus, Paul, 204, 207–208, 210–11, 215–16, 219 Althouse, Ann, 5, 371 Altmann, Alexander, 73 ‘aman, 328 American Revolution, 138, 184, 229, 300, 371 ancient regime, 61 anti-Christ, 375

anti-shocking ordinances, 172 Aquinas, Thomas, 129–30, 225, 239– 43, 245, 250–51 Aristotelian, 62, 128–29, 131, 137, 139–40, 144, 151, 221, 224, 239–40 Aristotle, 75, 126, 128–29, 139, 146, 152, 188, 193, 238–40, 243 Arnold, Matthew, 324 Articles of Confederation, 146 Aryan paragraph, 202, 215n3 Asad, Muhammad, 16 Asahara, Shoko, 20, 358–59 Asmussen, Hans, 205, 216 Athens, 31, 77, 79 Audi, Robert, 50, 117 Augustine, 7–8, 119, 121–22, 124–29, 137, 140–42, 150–53, 155–56, 158, 207, 243 Augustinian, 7, 8, 12–13, 126, 129, 137–40, 143–45, 147–53, 115, 160 Aum Shinrikyo sect, 20, 358 Aurangzeb, Emperor, 274 autonomy, 39, 47, 50n10, 111, 135, 224, 230, 235, 259, 280–81, 352, 366–67 Avicenna, 232, 244; see also Ibn Sina

379

380

Index

Avicennian, 234, 238 Avineri, Shlomo, 364–65, 376 Ayoub, Mahmoud, 22 Aziz al-Azmeh, 272, 287–88 Bacon, Roger, 244 Badiou, Alain, 13, 226, 227–46, 248, 250, 251n9, 331–32 Barak, Chief Justice Aharon, 263 Barman Declaration, 11, 109, 201–206, 215, 218 Barth, Karl, 6, 11, 91, 103, 107–11, 113–14, 117, 201–203, 205–208, 211–212, 215–219 Batnitzky, Leora, 369, 377 Bauer, Gary, 163, 169 Beecher, Henry Ward, 166–67, 178 Benavides, Gustavo, 341–42, 359–60 Benjamin, Walter, 226, 373, 377 Bentham, Jeremy, 86, 369 Berlin, N.Z.Y. (the Neziv), 257, 267 Berman, Harold, 154 Bethge, Eberhard, 203, 214–16, 220 Bhagavid-Gita, 228 Bill of Rights, 29, 184 bin Laden, Osama, 323, 332, 339 blang dor, 351 bloodshed, 257, 296, 298 Boardman, Henry, 164–65, 168, 177 Bodh Gaya, 302 bodhisattva politicians, 20, 357 Body of Christ, 123, 125, 126–27, 131, 132, 135, 140, 149, 152, 337 Bon [religion], 295, 297, 302, 305, 317 Bonhoeffer, Dietrick, 11–12, 201–202, 211–14, 216, 220, 380 bookmaking, 172 Bose, Subhas Chandra, 300 Boulnois, Oliver, 244, 251 Brandeis, Louis, 81, 88 Bretton Woods, 163, 175 British colonial rule, 279–80 Brunner, Emil, 206–207, 210, 217–18 Buddhism: Hinayana, 356; Mahayana, 294, 379; Tibetan, 20–21, 291, 297– 300, 344, 355, 358, 360, 379 Bulgakov, Sergei, 222, 248, 250–51

Buddha, 20, 295, 307, 316, 318, 344– 45, 347, 349, 355–57 Bush v. Gore, 174 Bush, George H. W., 162 Bush, George W., 20, 162, 174, 332, 339 Cain, 18, 150, 325, 333, 337, 339 Calvin, John, 10, 137, 188, 216 Calvinism, 137, 144, 148, 179, 186, 189–91, 196, 198 capital punishment, 3, 41, 43–44, 111 capitalism, 7, 87, 96, 99, 115, 137, 150, 153, 155, 158–60, 163, 168, 177, 179, 223, 251, 293 caritas, 124–26, 129, 132, 137–38, 153 Cartesian, 233, 237 Chaplin, Charlie, 228 Charlemagne, 132 Charter of the Tibetans in Exile, 17, 19, 292, 296–99, 307–309, 318n27, 319n45, 345, 346 China, 17, 293, 295, 297, 298, 301, 303, 306, 312, 314, 318n25, 342, 345, 348 Chitue, 17, 297, 308–309 Chos-lug-rimey, 17–18, 38, 291–92, 297, 309 Chos-sig-sung-drel, 17, 292, 294–95, 297–98 Christ, Jesus, 12–33, 123, 125–28, 131, 133, 135–36, 140, 149–50, 152, 155, 179, 192, 203–206, 209, 211–12, 214–16, 210–20, 226–229, 265, 324–25, 337, 339, 345, 369 Christian Coalition, 170, 179 Church of England, 140, 294 Cicero, 77–80, 83–86 circumcision, 33, 337–38 citizen, citizenship, 2–5, 10, 16–17, 25–26, 28–31, 33–34, 37, 53–61, 63, 65, 74, 87, 105, 111–12, 128, 270, 280–81, 283, 286, 365 City of God, 126, 131, 140, 150, 153 civil liberties, 194, 315 civil religion, 2, 4 civil rights movement, 111

Index civil society, 4–5,10, 16, 55–56, 68, 73, 187–88, 189–95, 197, 229, 277, 279, 285–86, 314 Clinton impeachment, 174 Cochran, Arthur, 210, 218n37 colonialism, 273 Columbus, Christopher, 87n14, 134 commandments, God’s, 51, 58, 61, 64, 67–69, 209, 271, 333, 337. See also Ten Commandments Commandment, First [Second], 336 Commandment, Sixth, 329 commerce, 8, 11, 78–79, 82, 86, 124, 133, 137, 140, 142, 148, 158–60, 165, 167, 194 communism, 60, 149, 194, 293 compassionate, 51, 358–59 Confessing Church, 11, 12, 202–203, 208, 211, 215–16, 218–19 conscience, 30, 41, 47, 63–64, 67, 134, 145, 184–85, 192, 219, 272, 274, 297, 336 Constitution, ancient, 141 Constitution, Mosaic, 64 Constitution, Weimar, 375 Constitution of Alabama (State), 45 Constitution of Maryland (State, 1776), 184 Constitution of New York (State, 1777), 184 Constitution of Pakistan, 16, 252 Constitution of Pennsylvania (State, 1776), 184 Constitution of the United States [Federal Constitution of 1787], 8, 29, 78, 81, 83, 85n3, 88n22, 148, 171, 177n14, 315n7, 365 Constitution of Tibet (1963), 17, 292, 295, 298, 304–308, 315n8, 318ns33, 34, 319ns38, 45, 47, 320n48, 368 Country-Court debate, 8, 123, 138, 143–44 covenant, 4, 19, 53–54, 62–69, 72, 109, 137, 142, 144, 190, 327, 334– 35, 338, 367 covenant community, 4, 69, 72, 74

381

covenantal claims, 62, 68 crusader, 132 Crusades, 132, 323, 326 Cunningham, Connor, 232, 251 cupiditas, 124, 153 Cusa, Nicholas of, 244 Dáat Torah, 262, 267 Dachau, 202 Dakpa, Lhading Khenchen, 304 Dalai Lama, Fifth, 296, 316–17 Dalai Lama, Fourteenth, 11, 16–19, 38, 291–93, 295–97, 299–300, 344 Damdul, Gyakpon Kesang, 305, 307, 319 Daniels, Bruce, 166, 178 dastur amals, 274 Declaration of Independence, 37, 106 Deism, 61 Deleuze, Gilles, 226, 231–34, 238–46, 251 Democracy in America [Alexis de Tocqueville], 104, 154, 250 Derrida, Jacques, 13–14, 19, 68, 122, 124, 155–56, 226–27, 230–32, 336, 339–40 de Sade, Marquis, 28 Desmond, William, 245, 251 de Tocqueville, Alexis, 228–29 Deuteronomy, Book of, 51, 66, 68, 333, 337 Devil, the, 9, 110, 197 Dewey, John, 31, 104, 184 Deytsen, King Trisung, 295 dharma, 341, 345, 346 Dharmakirti, 353, 360, 379 Diaspora, Jewish, 73, 76n89 Diaspora, Tibetan, 16, 291, 294–95, 299–304, 309–310, 314, 368 Diet of Worms, 136 Dionysius the Areopagite, 229 divine law, 5, 210, 219, 261, 270, 272, 276, 313 divine task, 11, 209 Dobuon, James, 163, 169 Donaldson, Sam, 162 Dungkar, Lobsang Trinley, 345, 360

382

Index

Dunne, John, 19–21, 341–42, 361 Durkheim, Émile, 103, 365 Dworkin, Ronald, 28, 369, 376 Eckhart, Meister, 243 Edomites, 325 eide, 224 eidos, 233, 241 Eisen, Arnold, 6–7, 91 election, 73–74, 76, 174, 202, 286, 291, 301–302, 304, 308–311 Elert, Werner, 204, 210–11 Eliade, Mircea, 102, 116 Elizabeth II, Queen, 313 Engels, Friedrich, 221 English Civil War, 138 Enlightenment, 1–2, 4, 12, 21, 72, 95, 110, 121–22, 127, 141, 148, 185, 295, 206–208, 213, 217, 227, 278, 318, 355, 275–77. See also Scottish Enlightenment Enron, 163, 275 epistemology, 6, 11, 94, 203, 208, 212, 244, 381 equality, 16, 36, 48, 125, 127, 129, 139, 150, 250, 268, 277, 279, 283, 285, 297, 370, 377 Erasmus, Desiderius, 324 Erastianism, 371 Erie Railroad Company v. Tompkins, 81, 86, 88 Esau, 325 eschatology, 7, 127 establishment clause, 1, 7, 49, 111 ethics, 8, 11–12, 14, 34, 70, 75, 126, 128, 201, 206, 211–12, 214, 216, 219–20, 228, 234, 236, 250, 262, 270, 273, 277–78, 324, 335, 369, 377, 380–81 European Union, 11 Evangelical Surge, 166 evangelicals, 8–9, 161–71, 173–80 evil, 7–8, 20, 25, 31, 45, 84, 105, 111, 124–26, 137, 140, 142–43, 147–49, 197–98, 212, 224, 248, 257, 324, 332, 336, 355, 357–58, 362, 373

Evil Splinter, 20, 357–58, 362 ex nihilo, 191, 237 excommunication, 58, 134 Exodus, Book of, 18, 68, 264, 326, 329, 331–32, 335, 338 Ezekiel, 327 facts and values, 6, 98, 105–106, 114 faith, 5, 13, 16–18, 29, 38, 41, 54, 61, 69–70, 72, 76, 83, 94–95, 98–103, 105–111, 117, 121–22, 126, 135– 37, 151, 154, 166, 176, 205–206, 215–16, 218–19, 228, 250, 266, 271–72, 275–76, 278–80, 284–86, 293, 296–97, 304, 306, 316, 327– 29, 337, 352, 366, 369 Fall, the, 211–14 fallen man, 127, 143 fallen world, 7, 123, 125, 145, 153, 193 fallibility, 7–8, 10, 14, 277 false consciousness, 367 falsifa, 269 farmans, 274 fascism, 60, 105–106, 229, 293, 367, 372 fascist, 225, 363, 372, 376 Fatawa-I- Alamgiri, 274 The Federalist 146–47, 159–60 Ferguson, Adam, 142 Fichte, Johann, 235 Fielder, Eberhard, 209 Filmer, Sir Robert, 293 fiqh, 15–16, 269, 271–73, 281, 283–85 Flynn, Bernard, 22 Franciscans, 127–28, 131, 133, 156, 244 Frankfurt School, 367 free press, 36, 376 free speech, 2, 365 French Revolution, 194 French, Rebecca Redwood, 295 Freud, Sigmund, 246, 367 Friedman, Milton, 8, 124 Führer, 205, 375. See also Hitler, Adolf Fuller, Lon, 177, 369, 376 fulsuf, 269 fuquha, 269

Index Galston, William, 26, 50 gambling, 8–9, 30, 39, 46, 80, 161–62 Ganden, Phodrang, 295 Gandi, Mahatma, 44, 300 Garver, Eugene, 33, 50 gay marriage, 26, 46, 294 Gelug/Gelukpa [Yellow hat sect], 295, 296, 298, 299, 303, 305, 309, 316n12, 344, 352–54, 361n18, 362n23 General Equilbrium Theory, 149 Genesis, Book of, 109, 325 Genesis Rabbah, 338 German Evangelical Church, 201–202, 215, 217 gift(s), 12, 92, 104, 132, 207, 211–14, 224 Giles of Lessines, 129 Gilsson, Étienne, 240 God’s image, 196, 370 golden calf, 18, 331 good, the, 5, 10, 15, 19, 26–31, 33, 36, 41, 45, 48, 58, 63, 69, 72, 76, 78, 84, 97, 104, 125–26, 128, 136–37, 141–43, 148, 155, 183, 198, 205, 212, 222, 224, 228, 242–43, 246, 262, 275, 336, 346, 369 Goodman, Lenn, 3, 117, 366 goodness, 242–43, 335 Gospel, the, 11, 128, 129, 137, 109, 164, 204, 210–11, 214, 217 grace, 8, 12–13, 37, 137, 144–46, 153,190, 192–99, 205, 207, 210, 212, 215, 217–19, 222, 226, 230– 31, 234–35, 371 Graham, Billy, 163, 177 Grand Oath of Allegiance and Loyalty, 302, 304 Gray, John, 197, 199 Great Awakening, 145–46 Gregory of Nyssa, 338 Grotius, Hugo, 127 Guide of the Perplexed, 265, 267, 377 Guidelines on the Future of Tibet’s Constitution, 292, 310–11 guilt, 40, 46, 127, 133, 194, 216 Gurkha, Nepali, 234, 299

383

Gushri Khan, 296 Gyatso, Gen Lobsang, 19–21, 343–59, 360n12, 361ns16, 17, 362ns23, 27 Gyatso, Karma, 317n15 Gyatso, Sangye, 299 Habermas, Jürgen, 6, 110, 117 hadith, 273, 284 Haggard, Ted, 162, 176 hakmiyat, 269 Halakhah, 70–71, 256–57, 262, 265 Hamburger, Phillip, 28, 50, 315 Hampshire, Stuart, 334, 340 Hanafi [School of Islamic law], 273–74 Hanbali [School of Islamic law], 273 Hardin, Russell, 364 Harding, Warren G., 171 Harrington, James, 139–40, 146, 158 Hegel, G. W. F., 222, 225–26, 228, 232, 245, 248–49, 251, 364–65, 376 Hegelian, 231, 243, 247, 274 Heidegger, Martin, 222, 231–32, 248, 269, 376 Henry, Carl, 163–64, 166–67 Herberg, Will, 121, 154 Heschel, Abraham Joshua, 6, 92, 100– 103, 109, 111, 113, 115–17, 216 Hinduism, 228, 271, 274, 294, Hirsch, Emmanuel, 204, 206–208, 215–16, 218 Hitler, Adolf, 1, 11–12, 201–203, 205, 211, 214–19. See also Führer Hobbes, Thomas, 19, 27, 53–57, 60, 73, 137–38, 140, 158, 293, 334, 340, 366 Hobbesian, 141, 146, 148 Holmes, Oliver Wendell, 5, 77, 79–81, 83–85, 87, 89 Holocaust, 70–71, 215–16, 369, 376 homosexuality, 171 Hooker, Richard, 140–41, 148, 216 Horkheimer, ax, 367, 376 Hosea, 327, 328 human nature, 13, 55, 70, 77, 80, 84, 160, 183, 196, 213, 221, 274, 334, 366, 370 Hume, David, 141–43, 147–48, 160

384

Index

Hunter, Ian, 370, 377 Hussein, Saddam, 20 Hutchinson, Anne, 144 hyle, 223–25 Ibn Sina, 275. See also Avicenna idealism, 13, 81, 88, 206, 213–14, 223–25, 229–30, 235, 237, 245, 248 Idealism, German, 213–14, 223–24 idealist, 207, 213, 221–22, 224, 230–31 idol, 18, 22, 208, 323, 330–33, 367 idolotry, 18, 69, 151, 153, 257, 324, 326, 328–29, 332–33, 339, 372 ijma, 272, 278, 281, 285 ijtihad, 15–16, 273, 278, 285 Ikhlaq literature, 273 iman, 276, 286 immanence, 224, 248, 329, 335–63, 372 immanent, 13, 19, 206, 224, 238, 241, 248, 257, 335–36, 369, 372 immateriality, 225 incest, 257 infallibility, 14, 277 infidel, 18, 323–24, 328–29, 335 International Monetary Fund, 7 Iqbal, Muhanmmad, 273, 277–80, 285, 288–89 irtifaqat, 275 Israeli, Shaul, 264–65, 67 Israelites, 18, 323–26, 330, 332 Jacob, 259, 325 Jalal, Ayesha, 15–16, 368 Jamat-i-Islami, 280, 285–86 Jefferson, Thomas, 29, 315, 366 Jeffersonian, 139, 185 Jeremiah, 324, 326–27, 335, 337–38 Jethro, 264 Jewish political sovereignty, 260 Jewish State, 14, 15, 71, 255, 259, 261–62, 265 Jewish Studies, 7, 91 Jewish Theological Seminary, 7, 115 jig rten pa, 346–47

jihad, 281, 285–86 John XXII, Pope, 127 John of St. Thomas, 241 Judas, 123 justice, 10, 12, 16, 18–19, 29, 31–33, 44–46, 50, 111, 126, 137, 143, 151, 195, 197, 209–210, 212, 222–23, 256, 264, 271, 274–75, 277, 280, 282–83, 285–86, 323, 329–39 Kagyu [Black hat sect], 295, 296 kahal, 260 kalam, 269 Kalon Tripa, 309–310, 312 Kant, Immanuel, 70, 74, 94, 188, 213– 14, 217, 224, 330 Kantian, 70, 217, 224, 235 Kaplan, Mordecai, 6, 92, 100, 103–106, 107, 109–110, 113, 116–17 karma, 297, 303, 310, 314 Kashag, 307–309, 319–20 Katz, Jacob, 73 Keaton, Buster, 228 Keayne, Robert, 144 Kelsen, Hans, 375 Kenesset, 255 Keynes, John Maynard, 149, 160 Khaldun, 275 Khan, Gushri, 296 Khan, Sayyid Ahmad, 273 Khe dbang, 346 khilafat, 269, 272, 275, 281–82 Kierkegaard, Søren, 110, 228 Kieslowski, Krzysztof, 250 King, Martin Luther, 111, 113, 185–86 Kojev, Alexander, 249 Kuyper, Abraham, 10–11, 21, 179, 185–99 Lacan, Jacques, 13, 236–249 Lambton, Ann, 270–71, 287 Lefort, Claude, 13,22 Levenson, Jon, 102, 116 Levi, Haim David, 230, 261, 322, 331, 333, 335–36, 338 Levinas, Emmanuel, 19, 40, 230, 250, 330–40, 369, 372, 377

Index Liaqua, Ali Khan, 283 Lincoln, Abraham, 111, 178, 323, 339 Lochner v. New York, 5, 83, 88 Locke, John, 4, 10, 21, 55, 68, 73, 127, 140, 141, 142, 148, 158, 187, 257, 293, 315, 366, 377 logos, 224–25, 231, 236–37, 335–36 Lopez, Donald, 341, 359 lotteries, 39, 162, 166–69, 172, 174, 176, 178, 180 Luther, Martin, 136–37, 161, 188, 203, 210, 213, 215–17, 219 Lutheranism, 60, 210 Macedo, Stephen, 50 Machiavelli, Niccolò, 139 Madison, James, 21, 86, 142, 147, 148, 149, 160 madrassas, 286 magistrates, 51, 144, 193–94 Maimonides [Moses ben Maimon], 51, 260, 265–66, 369, 377 majoritarianism, 5, 84, 374 Maliki [School of Islamic law], 273 mandate, divine, 10, 12, 212, 214 Manson, Charles, 44 Mao Zedong, 41, 312 Mapplethorpe, Robert, 49 Marcuse, Herbert, 115, 367, 376 Mardsden, George, 177 markets, 7–9, 48, 119, 121–24, 128, 131, 133–35, 138, 140–43, 148–53, 155, 160–65, 168 Marx, Karl, 7, 13, 151–52, 221–23, 341, 365, 369 Marxism, 12, 149, 153, 160, 221–23, 227, 248, 373 Marxist, 12–13, 108, 373 masalih, 274–75 materialism, 12–13, 151, 221–23, 225, 231, 233, 235, 237, 241, materialist, 13, 221–22, 226, 233, 235 Mather, Cotton, 166 Maudoodi, Abul Ala, 280–82, 285–86, 289 McCloskey, Deirdre, 143 Meier, Heinrich, 375, 377

385

Mendelssohn, Moses, 4, 53–75 Mensch, Elizabeth, 7–8, 10, 371 Messiah, 371, 373 metaphysics, 2, 5, 25, 29, 38, 40, 43–48, 70, 84, 103, 222, 232, 354, 369, 377 middle way, 17, 291, 314 Milbank, John, 12–14, 154–56, 368, 371 Mill, James, 293, 315 Mill, John Stuart, 27, 31, 35, 184, 186, 293, 315 Milosevic, Slobodan, 44 Mishnah, 333, 340n14 modernism, 8, 178, 232, 359–60, 372 modernity, 15, 53–54, 72, 76, 110, 114–15, 177, 251, 269–70, 273, 284, 287–89, 341–45, 359–60, 367, 372 monotheism, 18–19, 295, 325–29, 333, 335, 339, 381 moral relativism/relativist, 93, 95 Moses, 18, 264, 324, 329, 332, 337, 372 Mother Theresa, 44 Müller, Ludwig, 202 multiculturalism, 13, 110, 117 mutakallimum, 269 mystical nihilism, 231 mythos, 236–37 Nachmanides [Moses ben Nachman], 75 Narkyid, Ngawang Thondrop, 306, 319 National Socialism, 202–203, 206. See also Nazism National Socialists, 11, 201–205. See also Nazi natural law, 4, 75, 126, 128, 130–31, 140, 154, 191, 214, 220, 369, 369 natural reason, 11, 57, 131, 143, 204, 211–13. See also reason natural religion, 56, 70 natural rights, 37, 57, 63, 84, 154, 156, 214, 219–20 natural theology, 12, 70–71, 206, 209, 214, 217, 219

386

Index

natural, the, 225, 313, 318 Nazi, 11, 202, 206–207, 214–15, 300, 375. See also National Socialists Nazi Hegemony, 369 Nazism, 60, 109, 140, 160, 215, 217–18, 248, 293. See also National Socialism negative theology, 226–27, 336–37 Neo-Aristotelian, 151 neoconservative, 371 neo-Kantian, 234–35 Newmyer, R. Kent, 81, 83, 86–88 Niemöller, Martin, 202, 215–16 Nietzsche, Friedrich, 12, 217, 221, 246, 251, 369 Nizami [curriculum], 286, 289n59 Noahide Law, 69, 75 Noll, Mark, 164, 166, 170, 177–79 nominalism, 213 Norbu, Dawa, 313, 318 Norbu, Jamyang, 296, 306, 316, 319 Novak, David, 3, 4, 21, 368, 371 Nyingma [Red hat sect], 295, 299, 317n14 nyon mongs, 347 Objectives Resolution of 1949, 282 Ockham’s Razor, 71 On Liberty [John Stuart Mill], 186 Pakistan, 15–16, 270, 279–80, 282–89, 294, 368 Palmer, R. R., 164, 177 Passkey of the Fortunate [Gen Lobsang Gyatso], 19, 343–45, 347–52, 355– 57, 361 paternalism, 27 Pentateuch, 264, 267. See also Torah penultimate, the, 212–13 Phagpa, Choegyal, 295 Phodrang, Ganden, 301 Plato, 43, 47, 228, 236, 277, 292, 331, 373 Platonic forms, 224, 237 Platonic-Aristotelian, 43, 47, 73, 188, 228, 236, 277, 292, 331 Pledge of Allegiance, 32, 49

Plotinus, 231–32 pluralism, 4, 18, 28, 50, 57, 60, 110, 227, 231, 326, 365, 379 Pocock, J. G. A., 158–59, 376 Pol Pot, 44 political theology, 1, 21, 66, 203, 205–206, 213, 363, 373–76 pope, the, 44, 126, 136 pornography, 3, 39–40, 49 post-modern, 121, 213, 220 private sphere, 9, 16, 110, 122, 179, 286 Proclus, 239 Prohibition, 9, 171–72 prophecy, 6, 97, 100, 103, 264 prophet, 98, 100–102, 108, 115, 271, 273–74, 276, 279, 283, 333, 373 prophetic signs, 235 prophets, 41, 100–102, 108, 111, 115– 16, 264, 267, 339 The Protestant Ethic, 96, 115n23 psyche, 224 public deliberations, 2, 27, 33, 42 public good, 5, 29, 141, 271, 274–75 public policy, 2, 10, 25, 41–42, 46, 185 public space, 16, 286 public sphere, the, 122, 185 Puritans, 96, 141, 166, 178 Putnam, Hillary, 115 qanun-I-shahi, 274 Qur’an, 271–72, 275–77, 278, 281, 283–84 racetracks, 162, 169, 174 Rahman, Fazlur, 16, 276, 284, 287–88 Rasmussen, Carl, 11–12, 14, 371 rationality, 6, 58, 92–93, 96, 114–16, 157, 293, 334–35, 342, 360, 372 Ravitsky, Aviezer, 14, 368, 371 Rawls, John, 2–3, 7, 17, 21, 25–37, 39, 43, 45–47, 50, 53, 73, 110, 154, 183–84, 292–94, 315, 369, 377 Rawlsian, 50, 292–94, 296, 314 ráy-I-kuli [collective good], 275 Raz, Joseph, 29

Index reason, 5–6, 11–12, 15, 20, 25, 28, 33, 44, 57–58, 70, 74–83, 85, 95–96, 98, 105, 109–10, 126, 131, 137, 143, 148, 151, 154, 157, 204, 207, 211–13, 236, 240, 244, 293, 351– 55, 361, 366, 370–72, 374–75. See also natural reason reason, right, 77–78, 82 reason, universal, 5, 58, 87, 234 redemption, redemptionism, 20, 95, 105, 144, 152, 219, 369 Reformation, 8, 11, 137, 156, 158–59, 202–204, 206, 208, 210, 212, 216– 19, 337 reincarnation, 17, 301, 313 The Republic (Plato), 43, 47, 277 resurrection, 137, 227–28 Reuven, Nissimen, 264, 267 revelation, 4, 11, 18–19, 47, 61, 65, 69, 71, 94–95, 98–103, 116, 192, 204– 205, 207, 203–213, 274, 277, 284, 329, 332–33, 336, 339, 370–73, 375, 377 riba [interest-taking], 276 Rida, Rashid, 277 rights, 1–2, 11–12, 14–15, 19, 26, 30–34, 37, 45–47, 51, 55, 55–57, 59–60, 62–64, 66–68, 75, 82–84, 111, 121, 123, 127, 136, 140, 142, 154, 156, 173, 185, 190, 194, 197– 98, 202, 214, 216, 219–20, 235–36, 258, 265, 270–71, 280–82, 286–87, 315, 318, 350, 352, 355 rimey, 296–97, 317 Rinpoche, Reting, 299, 312, 316 Rinpoche, Samdhong, 297–98, 309, 317–20 Roe v. Wade, 9, 25, 172 Roman Law, 87, 134–35 romanticism, 1, 186, 206 Rome, 77, 79, 131, 134, 217 Romulus and Remus, 150 Rorty, Richard, 110, 113, 184–85 Rousseau, Jean-Jacques, 293, 315 Rule of Law, 78, 180, 309 Rumsfeld, Donald, 323 Rushdie, Salman, 284

387

Sachsenhausen, 202 St. Francis, 126–27 St. Paul, 13, 179n43, 226, 228, 235– 36, 246, 247, 249–50, 325, 329, 334, 337–38, 373 Sakya (White hat sect), 295 salvation, 61, 105–107, 117, 125, 132, 135–36, 196–97, 222, 291, 360, 365 Sangay, Lobsang, 16–18, 19, 20, 368, 371 The Satanic Verses (Salman Rushdie), 284 Schelling, F. W. J., 225 Schmitt, Carl, 367, 375–76 scholasticism, 8, 242 Scholder, Klaus, 201, 203, 209–210, 214–16, 218–20 Scholem, Gershom, 113, 117, 373, 377 Schwartz, Regina, 18–19, 22, 371 Scotus, Duns, 238, 242, 244 Scottish Enlightenment, 141, 148. See also Enlightenment scripture, 4, 12, 18, 26, 38, 40, 45–46, 66, 69, 113, 195, 207, 209, 214, 310, 323–24, 328, 351, 361 Second Coming, 7, 125, 137 Second Gulf War, 20 “Second Inaugural Address” (Abraham Lincoln), 11, 323, 339 Sen, Amartya, 149 Shafi (School of Islamic law), 273 sharia, 15–16, 270, 276, 279, 281–83, 287 Shays’ Rebellion, 146–47 Shi’ism, 274 Sider, Ron, 165 sin, 7–10, 46, 77, 123–25, 128, 130, 134, 136, 140–41, 144–45, 150, 153, 192–93, 196–97, 211, 246, 325 Sinai, 18, 64, 69, 331, 333, 372 Sinai Pact, 53 sinful behavior, 329 Sixteen Moral Rules (Buddhist), 8 Skeel, David A., Jr., 8–10, 371 slavery, 3, 9, 36, 68, 140, 190, 332

388

Index

Smith, Adam, 7, 129, 132, 138, 141, 143, 148, 159 Smith, J. Z., 345, 360 social contract, 4, 21, 53–57, 59–60, 62–66, 68–69, 72–73, 76, 190, 315, 334, 367, 380 social good, 5, 143, 148 Social Gospel, 165, 178 socialism, 13–14, 206, 221–23, 226, 231–32, 245–49, 324, 349 Socrates, 228, 292 Solomon, King, 259 Soloveitchik, Joseph, 6, 109–110, 112–13, 117 sovereignty, 10, 212, 14–16, 37, 62, 65, 141, 146, 148, 159, 186, 188–89, 193–95, 198, 258–60, 262, 269–71, 273–74, 276, 278–79, 281–83, 285, 287, 289, 293, 306, 348, 361, 377, 380 Sparta, 139 Spinoza, Baruch, 4, 12, 54, 59–60, 62–63, 65–73, 221, 232 srid, 345 Stalin, Josef, 41 Stapel, Wilhelm, 204, 208, 216–17 state of nature, 54–55, 68, 73, 141, 334, 366 Stoics, 12, 221 Story, Joseph, 5, 7–83, 85–88 Stout, Jeffrey, 110–11, 113, 154n10, 373–75 Strauss, Leo, 367, 369, 371–72 Stuntz, William, 171–72, 179–80 substantive due process, 82 sunnah, 271–72, 275, 281, 283 Sunni, 15, 273–74, 281, 283, 286 Supreme Court, United States, 78, 83, 86, 88 Swift v. Tyson, 77–79, 81–84, 86–88 taklif, 275 Taktra, 312 Talmud, 53, 75, 339 Talmudic Law, 260, 376 Tanakh, 14, 373 tatbiq, 274

tauhid, 269, 278 tekos, 128 telos, 222, 233 temptation, 9, 57, 165, 335 Ten Commandments, 41, 49. See also commandments, God’s Ten Divine Virtues (Buddhism), 295, 316 terror, 18, 145, 203, 245, 321, 323, 328–29, 333–34, 362 Tertullian, 122, 125–27, 131, 135, 136, 154–56, 339 Thelle, Notto, 51 theological centralization, 279 Theory of Right, 46, 330 Third Reich, 11, 201–208, 210–11 Thirteen Codes (Buddhism), 130, 188, 207, 213, 225, 239–41, 243 toleration, 50, 88, 148, 257, 266, 375 Torah, 51, 61–62, 65, 67–69, 71, 75, 259–65, 267, 336. See also Pentateuch tariqah, 274 totalitarian, totalitarianism, 11–12, 19, 27, 49, 156, 193–202, 204–205, 208–11, 257–58, 334–35, 367–68, 376 Tracy, David, 110, 117 transcendence, 12, 14, 40, 208, 221– 22, 224, 329, 335–36, 363, 368 transcendent, the, 13, 19, 41, 47, 59, 84–85, 137, 224–25, 229, 238, 326, 335–36, 369, 370, 372, 374 trinchols, 297 triumphalism, 329 Trump, Donald, 170 Two Kingdom’s, Luther’s doctrine of the, 11, 203–204, 208 Tucker, Josiah, 141–42, 144, 147 ulema, 15–16, 272–74, 277, 280–83, 286–87 ummah, 269 Unger, Roberto, 21, 366, 376 usury, 128–30, 134, 137, 144 value free, 6, 99

Index Vatican, 201 via negativa, 222, 229 vice, 129, 167, 172, 327 Vico, Giambattista, 222, 250 Villa, Dana, 368, 376 violence, 18–21, 39, 43, 54, 121, 223, 232, 248, 286, 287, 292, 299–301, 323, 325–29, 333, 355–56, 358, 362 Volk, 11, 204–206, 208, 211, 214, 220n48, 372 Volozhiner, Chaim, 338 Voltaire, 138 Waldron, Jeremy, 370, 377 Waliullah, Shah, 270, 273–76, 281–82, 286, 288 Warsaw Ghetto, 336 Washington, George, 145–46 watan, 278 The Wealth of Nations (Adam Smith), 138, 147 Weber, Max, 6, 91–104, 106–107, 110, 112–15, 117, 137, 187, 318, 375 Weimar Republic, 206, 369, 372, 375

389

Weiner, Norbert, 32 Westbrook, David, 150, 152–53, 160 Wiebe, Donald, 342, 359–60 Wiesel, Elie, 38 Williams, Roger, 144 Winthrop, John, 144, 159 Witherspoon, John, 147–48 Wolf, Immanuel, 91, 93, 113–14 Wolfe, Alan, 21 Wolterstorff, Nicholas, 10–12, 34, 368, 371 Wood, Gordon, 145, 159–60 World Bank, 7 Worldcom, 8, 149–50 Wren, Matthew, 141 Yahweh, 337–38 Yossel, son of Yossel, 330 zakat, 276 zarafa, 275 Zia-ul-Haq, Muhammad , 285 Žižek, Slavoj, 13, 226–27, 229, 231, 245–50, 341, 359

About the Contributors

Ann Althouse is the Robert W. & Irma M. Arthur-Bascom Professor at the University of Wisconsin Law School. Before joining the faculty in 1984, Professor Althouse attended New York University Law School (she served as senior note and comment editor for the Law Review and won the University Graduation Prize), clerked for federal district judge Leonard B. Sand, and practiced law in the litigation department of Sullivan & Cromwell in New York City. Her blog on legal and political subjects has achieved national acclaim. Charles L. Cohen is professor of history and religious studies at University of Wisconsin–Madison, and founding director of the Lubar Institute for the Study of the Abrahamic Religions. He is co-editor of Religion and Print Culture in Modern America (2008), and is co-editing a book on religious pluralism in modern America. John D. Dunne is associate professor of religion at Emory University. His specialties and research interests include Mahayana Buddhism, Tibetan Buddhism, South Asian philosophy, philosophy of language, and critical theory. He is the author of Foundations of Dharmakirti’s Philosophy (2004), and co-author of The Precious Garland: An Epistle to a King—A Translation of Nagarjuna’s Text from the Sanskrit and Tibetan (1996). Arnold M. Eisen is chancellor of the Jewish Theological Seminary, having formerly held the Daniel E. Koshland Professorship in Jewish Culture and Religion in the Religious Studies Department at Stanford University. He is the author of Rethinking Modern Judaism: Ritual, Commandment, Community (1998), and Taking Hold of Torah: Jewish Commitment and Community in 391

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About the Contributors

America (1997), and, with Steven M. Cohen, co-author of The Jew Within: Self, Family, and Community in America (2000). He is currently writing a book that probes the meaning of Zionism. Lenn E. Goodman is Andrew W. Mellon Professor of Humanities and professor of philosophy at Vanderbilt University. His books include Love Thy Neighbor as Thyself (2008); Islamic Humanism (2003); Judaism, Human Rights and Human Values (1998); and God of Abraham (1996), which won the Gratz College Centennial Prize. Ayesha Jalal is a MacArthur Fellow and professor of history at Tufts University. Her publications include Partisans of Allah: Jihad in South Asia (2008); Self and Sovereignty: the Muslim Individual and the Community of Islam in South Asia since 1850 (2000); and Democracy and Authoritarianism in South Asia: a Comparative and Historical Perspective (1995). She has also co-edited Nationalism, Democracy and Development: State and Politics in India (1997) and co-authored Modern South Asia: History, Culture and Political Economy (1999). Leonard V. Kaplan is Mortimer M. Jackson Professor of Law at the University of Wisconsin Law School. He is a founder and co-editor-in-chief of Graven Images: Studies in Culture, Law and the Sacred and co-editor of Aftermath: The Clinton Impeachment and the Presidency in the Age of Political Spectacle (2001). He is a founder and co-director of the Project for Law and the Humanities and past president of the International Academy of Law and Mental Health. Elizabeth Mensch is SUNY Distinguished Teaching Professor and professor of law, emerita at SUNY Buffalo. She is the co-author of The Politics of Virtue: Is Abortion Debatable? (1993) and edited the journal Law and Religion. John Milbank is professor in religion, politics, and ethics at the University of Nottingham. He is the author of, among other works, The Future of Love: Essays in Political Theology (2009); The Legend of Death: Two Poetic Sequences (2008); The Word Made Strange: Theology, Language, Culture (1997); co-author of Truth in Aquinas (2001), and co-editor of both Theology and the Political: The New Debate (2005), and Radical Orthodoxy: A New Theology (1999). David Novak holds the J. Richard and Dorothy Shiff Chair of Jewish Studies at the University of Toronto. He is also vice-president of the Union for Traditional Judaism, and is the author of, among other books, The Sanctity of Human Life (2007); The Jewish Social Contract: An Essay in Political Theology (2005); and Covenantal Rights: A Study in Jewish Political Theory (2000).

About the Contributors

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Carl J. Rasmussen is a partner in the Madison law firm of Boardman, Suhr, Curry & Field and a member of the editorial board of the journal Graven Images. He has published widely about theology and related topics. Aviezer Ravitzky is Sol Rosenblum Professor of Jewish Philosophy at the Hebrew University of Jerusalem and a Senior Fellow at the Israel Democracy Institute. He has written and edited numerous books and articles, including Is a Halakhic State Possible? The Paradox of Jewish Theocracy (2004); The Land of Israel in Modern Jewish Thought (1991, 1998, 2004); Religion and State in Jewish Philosophy (2002); Religious and Secular Jews in Israel: A Kulturkampf? (2000); History and Faith (1996); and Messianism, Zionism and Jewish Religious Radicalism (1996). In 2001 he received the Israel Prize, Israel’s most prestigious award, for his research in Jewish thought. Lobsang Sangay is Research Fellow at the Harvard Law School, where he received the 2004 Young K. Kim ’95 Memorial Prize and was the first Tibetan to earn the Ph.D. He has been one of the national leaders of the Tibetan Youth Congress, the largest and most active NGO in the Tibetan community in exile. Regina M. Schwartz is professor of English at Northwestern University. Her books include Sacramentality at the Dawn of Secularism: When God Left the World (2008); The Curse of Cain: The Violent Legacy of Monotheism (1997); and Remembering and Repeating: Biblical Creation in Paradise Lost (1988). She is also editor of The Book and the Text: The Bible and Literary Theory (1990) and Transcendence: Philosophy, Literature and Theology Approach the Beyond (2004). David A. Skeel, Jr. is the S. Samuel Arsht Professor of Corporate Law at the University of Pennsylvania Law School. He is the author of Icarus in the Boardroom: The Fundamental Flaws in Corporate America and Where They Came From (2005) and Debt’s Dominion: A History of Bankruptcy Law in America (2001), as well as numerous articles on corporate law, bankruptcy, law and religion, sovereign debt, and poetry and the law. Nicholas Wolterstorff is Noah Porter Professor of Philosophical Theology, emeritus, the Divinity School, Yale University. He is the author, among other books, of Justice: Rights and Wrongs (2007). He delivered the 1993 Wilde Lectures at Oxford University, which were published as Divine Discourse: Philosophical Reflections On The Claim That God Speaks (1995), and the 1995 Gifford Lectures at St. Andrews University, part of which have been published as Thomas Reid and the Story of Epistemology (2001). He has been president of the American Philosophical Association (Central Division), and of the Society of Christian Philosophers.