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From the April, 2009 issue of Touchstone


Divine Legalities by Michael P. Orsi

Divine Legalities

The Law of God: The Philosophical History of an Idea
by Rémi Brague
University of Chicago Press, 2007
(269 pages, $28.00, paperback)

reviewed by Michael P. Orsi

Rémi Brague is a professor of philosophy at the University of Paris I Pantheon-Sorbonne and the University of Munich. In this book, he examines the 3,000-year history of law as an expression of the divine will. Because religion has reemerged as a powerful political force, both nationally and internationally, Brague’s analysis of the notion of the divine law is an invaluable resource for understanding the underlying dynamic that motivates human beings. Brague especially focuses on law as it pertains to the “People of the Book” (Jews, Christians, and Muslims).

Sources of Law

Brague’s basic insight is that law is an expression of how a society exercises power over itself. There are, he says, two fundamentally different sources, the natural law of Greek philosophy and the revealed law of Israel given by Yahweh. Brague sees Christianity and Islam as two offshoots of the Athens-Jerusalem axis. Nevertheless, he says, they understand the source of law and its application in radically different ways.

Brague says that “Greek law is divine because it expresses the profound structures of a permanent natural order; Jewish law is divine because it emanates from a god who is master of history. In both cases, it is external to the human and transcends the quotidian [that which is characteristic of ordinary life].” Brague traces the development of these philosophical concepts in the writings of the major commentators of each school of thought.

For the Greeks, although the laws were not of heavenly origin, they were seen as emanating from what is inherent in reality, and so had to be cognizant of (and commensurate with) the divinely ordained natural order. For Jews and Muslims, divine law had explicit and exclusivist political and historical dimensions.

Jewish understanding of law was limited, as something set down for the children of Israel alone. It embraced a messianic hope, not an earthly kingdom. On the other hand, Islam envisioned a transnational earthly community where law demanded submission to Allah based on divine command. The implication of both these models is more than obvious in the contemporary geopolitics of the Middle East, particularly in light of fundamentalist Islam’s effort to bring the world’s peoples to submission via the aegis of a worldwide theocratic state.

The understanding of law in Christian tradition points in a third direction, one that shows particular contrast with Islam. For Christians, law is not something “other.” Instead, it is God’s light within the heart of the believer. Muslims understand law as the will of Allah revealed directly to Mohammad in the Koran, essentially a force imposed from the outside.

Practical Implications

Brague emphasizes the different practical effects on society of these two approaches. “Christianity conquered the state through civil society,” he writes, “Islam to the contrary conquered civil society through the state.” This bespeaks a fundamentally different anthropology, touching on personal human conduct, political structures, and attitudes toward human rights. For example, concepts such as religious freedom, equality of the sexes, and the inherent dignity of the human person have little standing in

Islamic society.

Brague offers a fascinating overview of how each scriptural source—the Torah, the New Testament, and the Koran—interprets divine law. Also valuable is his survey of the work of scholars who have tried to discern the practical implications of each faith’s understanding of where and how law originates.

A key insight is the importance of Greek philosophical thought—especially that of Plato and Aristotle—which Brague sees as having provided a cross-pollination of ideas between scholars in the three major religions who imagined this world vis-à-vis their sacred texts. For example, the Muslims preferred Plato, and saw Mohammed as the philosopher king in the ideal city. On the other hand, religious thinkers in the Christian West preferred Aristotle, who saw human reason as the intermediary between God and man. They understood “nature” as indicative of the divine order, believing that human reason is capable of discerning the fundamental principles for human living.

(This “natural law” understanding is the hoped-for common ground that Pope Benedict XVI sees as the basis for a peaceful co-existence between Islam and the West. Unfortunately, Brague’s analysis doesn’t offer much optimism for the fulfillment of the Holy Father’s vision, since the Koran offers a profoundly different understanding of God and how human morality is ascertained.)

Brague provides an invaluable discussion of the religious law systems of the three faiths, making an important distinction between the Talmud and Sharia, on the one hand, and Catholic Canon Law, on the other. He notes that while the Talmud and Sharia provide exegesis of their respective (Jewish and Muslim) sacred texts, Canon Law is an autonomous discipline, standing apart from the Bible, though indirectly informed by it.

Indeed, Canon Law is procedural. Its primary emphasis is on providing individual believers (and the Church herself) with principles for addressing moral questions and making moral decisions—with comparatively little stipulated about religious requirements that must be fulfilled. Canon Law, Brague says “does not claim to embrace all of human behavior; it leaves aside the entire domain of morality,” which in the end, is the province of the properly formed conscience.

De-Naturalized Law

Brague is excellent in discussing the destruction of the idea of divine law in the modern world. He traces the development of philosophical relativism (which has led to legal positivism, the idea that law should reflect current social conditions, rather than any timeless, transcending principles) from its roots in the Enlightenment, to its pervasive application throughout post-modern Western society. He observes that “the birth of wholly human law was at first a consequence of the modification of the notion of the law of nature” (as if the law of nature were only a metaphor designed to help human beings achieve whatever transitory goals they might be pursuing at the moment). “As the law is not presently seen as natural,” he writes, “even the human comes to be conceived as not natural.”

He asserts that this de-naturalization of law lends itself to the contemporary ideology of the “rights of man,” noting wisely that this “avoids evoking to what source ‘man’ owes the humanity that renders him capable of having rights.” Law thus becomes not an expression of divine truth, but simply a balancing of pragmatic interests.

Brague lays this development largely at the feet of Protestantism. For the Jews, he writes, “law could only be deployed in the private domain . . . its political dimension is reserved for the time of the Messiah.” Islam, on the other hand, “insists on the impossibility of separating the political and the religious.” But Protestant Christianity’s “separating the entire genus of the practical from the divine made it possible for three species of that genus—the ethical, the economic and the political—to declare their independence.”

The book concludes with Brague’s positive appreciation of the basic Catholic principles of law expressed in the works of the late Pope John Paul II. He approves the pope’s insight that if law is to be humane, it must be rooted in a “transcendent source of meaning,” which united to human reason, can provide a moral culture.

Clearly, Brague’s observations will not convince relativists, legal positivists, or, for that matter, radical Islamists. They do, however, provide at least an understanding of (to use the modern colloquialism) “where people are coming from.” And that may, perhaps, act as a foundation for dialogue.

Michael P. Orsi is a Catholic priest and a Research Fellow in Law and Religion at Ave Maria School of Law.

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