With this episode I want to do something a little different. This will be a solo episode. Just me, sharing some ideas I’ve had and some things I’ve been studying recently.
So this will be a convergence of some of my pet interests like history, philosophy, and religion. I’m a pretty big theology nerd and I’ve spent the last few years getting into the languages of the Bible: Hebrew and Greek (not much into Aramaic yet, but maybe later on down the road). At this point I’ve read the complete Bible cover-to-cover in the original languages. And along with that its opened up a lot of avenues into the ancient world, not just of the people of ancient Israel but also of the larger Greco-Roman world. Which is nice because that includes some of the most profound thinkers of all time. And they’re really, really interesting.
There’s a lot I could get into with all of that and hopefully I will get into several topics later on down the road. But I was thinking, OK, with my first solo episode here what should I talk about? I’ve got to pick something. And I didn’t want to start off with something too far outside of anything that would interest most people. Like, ontology is something I’ve been digging into a lot recently but I think that’s going to have to wait. (We’ll get there though).
I have a pretty diverse group of friends between people my age I hang out with, my family, people in my neighborhood, and my church. And religion is a pretty big topic that seems to run through all those groups in one way or another. Which works out great for me because that’s, like, a big deal for me. And even when what I’m studying isn’t directly religious in nature it usually intersects in some way, or there are some insights that I can pick up from the texts of scriptures or commentators.
So what I’d like to get into today is the nature of law, and specifically moral law, law regarding conduct, how one ought to behave, what things one ought to do. And why I am I belaboring on that? What else would law be? Well we also speak of laws of physics and it’s not clear that those are the same kinds of laws. There are some obvious apparent differences, but we might still find that they’re just different aspects of what is ultimately one thing. I’m totally open to that idea. But that also might not be the case. And I think we need to seriously consider that idea.
So we’re talking about moral law but also more than that because some laws, especially laws we find in the scriptures aren’t obviously moral. Stuff like dietary laws or ritual laws. I guess you could say they’re moral but it doesn’t seem like a natural way to describe them. They seem to be less about being a moral or ethical person than about being a participant in a certain community. So being part of Israel is obviously the main one I’m going to talk about. So there are laws in the Bible about what people are supposed to do; often in an ethical sense but sometimes in some other sense.
OK, so why distinguish this from laws like the laws of physics. I’ll just call it “physical law”. So one big difference that’s pretty apparent is that physical law just isn’t the kind of law that it’s really possible to violate. And if we ever seem to violate we just figure, oh, what we we need to amend our understanding of physical law. It isn’t what we thought it was. Because physical law isn’t possible to violate. But laws of conduct aren’t like that. We violate them all the time. That’s the big problem, right? So there’s this Israeli author, very secular, very naturalistic, who makes this point in a popular book called Sapiens. And this is Yuval Harari. I’ll read a short paragraph:
“Culture tends to argue that it forbids only that which is unnatural. But from a biological perspective, nothing is unnatural. Whatever is possible is by definition also natural. A truly unnatural behaviour, one that goes against the laws of nature, simply cannot exist, so it would need no prohibition. No culture has ever bothered to forbid men to photosynthesise, women to run faster than the speed of light, or negatively charged electrons to be attracted to each other.” (Harari, Sapiens)
OK, so you get the idea. We don’t come up with laws of conduct about the laws of physics because they’re not the kinds of laws you could violate even if you wanted to. So where do these laws of conduct come from? And Harari’s view is that they come from culture. That’s something we want to resist. Right? At least as we start to get into specifics. If it’s something where there’s disagreement we might be relativists. Especially if it’s something we want to permit. Oh, well maybe getting a tattoo is bad for you but that doesn’t mean it’s bad for everyone. That type of thing. But when we start getting into the serious stuff like murder and child abuse that kind of dissipates. We don’t go around saying of the murderer, oh, he was just expressing his authenticity or something like that. We want to say no, that’s an absolute.
And this is something C.S. Lewis picked up on as foundational to faith, right? And I think it’s a compelling point. That’s how he started his argument in Mere Christianity. And it was central to his essay The Abolition of Man. There’s this transcendent moral order that he, with admirable ecumenism, called the Tao. If he were sticking to more Christian theological terms he probably would have said Logos. But I think he was making a point that this is a theme the occurs repeatedly in several of the enduring world religions. It’s a foundational concept, that there is this transcendent, eternal, unchanging moral order that we all recognize and intuit. So here’s a quote from The Abolition of Man:
“The Chinese also speak of a great thing (the greatest thing) called the Tao. It is the reality beyond all predicates, the abyss that was before the Creator Himself. It is Nature, it is the Way, the Road. It is the Way in which the universe goes on, the Way in which things everlastingly emerge, stilly and tranquilly, into space and time. It is also the Way which every man should tread in imitation of that cosmic and supercosmic progression, conforming all activities to that great exemplar… This conception in all its forms, Platonic, Aristotelian, Stoic, Christian, and Oriental alike, I shall henceforth refer to for brevity simply as ‘the Tao’.” (Lewis, The Abolition of Man)
So I’m a Platonist. I know that’s kind of unusual in the twenty-first century but whatever. So I’m Platonist and I’m reading this, nodding my head, and really loving it. This is great stuff. And I almost want to just stop there, say Amen, pack up, and head home. But we’re here to think deeply about these things so I’m not going to do that. And Lewis doesn’t do that and doesn’t want people to do that. He’s a thinker. He became a Christian as a man of thought. And he develops this idea powerfully in his book. That being said, I’m going to go in a different direction and look at some other texts because I’ve more recently started to rethink, not the ethics of Lewis’s Christian outlook but this particular meta-ethical foundation. I don’t reject it necessarily. But I’m seeing a little bit more complicated picture recently. Actually from scripture of all places. It’s not from scary, godless college professors indoctrinating our kids and all that. No, it’s actually scriptures that make me wonder if there’s a little more to this and even something, dare I say, potentially relativist at work in the meta-ethics of these texts.
OK, well I’ve had some help too. I didn’t come up with these ideas all on my own, just me and by Bible. The main book I’ll be drawing from his a book by Christine Hayes called What’s Divine About Divine Law? Hayes is a professor of religion and I have to mention while I’m introducing her this free course that she has available to watch or listen to online. If you look up Open Yale courses for her course on the Hebrew Bible/Old Testament, it is phenomenal. I highly recommend it. That was my first exposure to her work and it really encouraged my obsession with Biblical studies. In this book, What’s Divine About Divine Law?, she looks at two traditions, biblical and Greek, and compares their different perspectives on the sources of divine law. Compares but also looks at the give and take between them because obviously these cultures weren’t isolated from each other. Not even close. Especially after the conquests of Alexander the Great. We tons of cultural interaction, not always voluntary between Jews both in Israel and in the diaspora with the wider Greek, or Hellenistic culture. And that interaction was very extensive, such that eventually you get a large portion of the Jewish world speaking Greek, hence the need for the Septuagint, the Greek translation of the Hebrew Bible, which was the Bible for many Jews. And that’s the scripture that we generally find quoted in the New Testament, also written in Greek. This, by the way, is a big historical interest of mine. I love these cross-cultural exchanges, especially the Hebrew and Greek cultural correspondence. Good stuff.
OK, so Hayes. Let’s get into some of the main terms and theses. First, “divine”. What are we talking about there? I’ll quote from her book. She says:
“Divine law can be minimally defined as the idea that the norms that guide human actions are somehow rooted in the divine realm.”
OK, so not exactly a definition of “divine” per se, since it includes that word in the definition. But I think the idea here, the key, is that these norms are rooted somewhere else. They don’t come from humans, regular guys, or even kings really, any mortal persons, making these decrees. These norms come from outside. Outside everything. They are transcendent. They transcend space and time, everything material. OK? So this is something both have in common. Both the biblical and Greek. They both agree that there’s this divine law that comes from the outside.
But then the question is, what does it look like on the outside? Who’s there? Or is it a who there? So for the Greeks there’s not a who there. The divinity of the divine law is not personal. It’s very similar to the way most people think of the laws of physics. It’s not created by a person it’s just the way things are. And it applies to everybody. There wasn’t a contract drafted for this stuff, right? The laws of physics I mean. And that’s the Greek view of divine law as well. So quoting Hayes:
“In much Greek thought, divine law is divine ‘because it expresses the profound structures of a permanent natural order’ (Brague, The Law of God). On this view, divine law does not refer to a law of the gods. Divine law is an element operating within the physical world and our natures, rather than something imposed upon the world by a god from without. Many ancient Greeks would have answered the question “What’s so divine about divine law?” by asserting that divine law is divine by virtue of certain qualities inherent in it, first and foremost its rationality, which entails its truth value, its universality, and its static unchanging character.”
OK, so let’s pause here for a second and talk about Plato because he has the perfect line for this. And many of you familiar with philosophy have probably already been thinking about it as I’ve been talking. And we’re talking about Euthyphro and the famous Euthyphro dilemma, in which Socrates asks the sanctimonious young Euthyphro:
“Is the pious (τὸ ὅσιον) loved by the gods because it is pious, or is it pious because it is loved by the gods?” (10a)
You’ll often here this put more like, “Does God command you to do something because it is good or is it good because God commands it?” Which comes first? The Greeks, and of course we’re painting with broad brush here, but let’s just go with it; the Greeks opt for the first option. Yeah, God or the gods command us to act in certain ways. But the reason they command those things is because those things are eternally and unchangeably good. They didn’t just make that up. They didn’t decide it arbitrarily. It couldn’t be otherwise. So that’s one view, right? And of course, I’m presenting it in the most forceful way possible. When I use words like “arbitrary” and “make up” you’re hardly going to want to defend the other option. But let’s do that. So Hayes sees the biblical view taking that other option. Quoting her again:
“By contrast, according to biblical tradition, the law is divine not by virtue of an inherent quality but ‘because it emanates from a god who is master of history’ (Brague, The Law of God). Divine law is not the expression of an impersonal natural reason, the rational order of the cosmos; rather, it is the expression of a personal divine being’s will, which can take the form of detailed written instruction and legislation. Ancient adherents to biblical tradition would have answered the question ‘What’s so divine about divine law?’ by pointing to its origin in a divine will, a will expressed in history rather than nature. And while adherents to biblical tradition may have assumed that their god was good and his law was good, beyond establishing its point of origin the attribution of divinity did not in itself necessarily and essentially confer upon the law specific qualities such as rationality and its various entailments. The specific character of the law is thus something to be discovered.”
So that’s the contrast that she’s setting up, right? And this gets more complicated as we get further into the book. But I’m going to focus mostly on this beginning contrast and then get a little bit into the Jewish accommodations to the Greek outlook.
So let’s start with the biblical outlook, as Hayes presents it. That’s the one that might seem a little more foreign. At least to me. I’m a good Hellenist and I like my divine law solid and certain, right? Something I can figure out and master through reason. But this idea of law, law of conduct, that is divine yet personally instituted is kind of interesting, to say the least. Then again I might be an unusual kind of Christian and that might not be as unusual to some others, who might find that the more natural option. Like, of course that’s how it is!
OK, so let’s get into the Hebrew text. This is where it gets fun. And I’ll try to stick to English for the most part but I’m afraid I won’t be able to help myself from dropping some Hebrew here and there because it’s just so much fun. First text – Exodus 24:3-4a. And by the way, verses in the Hebrew Bible are divided into halves, so that’s what the ‘a’ is. Just the first half of verse 4 here. OK, Exodus 24:3-4a:
“And Moses came and recounted to the people all the LORD’s words [diḇrê ’ăḏōnāy, דִּבְרֵ֣י יְהוָ֔ה] and all the laws [ha mišpāṭîm, הַמִּשְׁפָּטִ֑ים] and the people answered with a single voice and said, ‘All the words that the LORD has spoken we will do.’ And Moses wrote down all the LORD’s words.”
And that’s the Robert Alter translation, which I tend to like. Follows the Hebrew very closely. So what’s happening here? The people here are making a covenant. We could call it a covenant of fealty to a Lord. Now, I’ll note quickly here the text isn’t quite so anachronistically feudalistic since where I’ve said “the LORD” it’s actually the proper name of God, the tetragrammaton, יְהוָ֖ה. I’m very traditional so I don’t pronounce that name. Nevertheless, even with a proper name, maybe even more so with a proper name, what we have here is a very personal covenant being made. The people of Israel aren’t committing to a life of diligent philosophical study to discern through pure reason the transcendent nature of reality. They’re covenanting to a personal deity with a proper name. Let’s look at some more text. How about Leviticus 18:4-5? This really gets driven home here.
“My laws you shall do and my statutes you shall keep to walk by them. I am the LORD your God. And you shall keep my statutes and my laws which a person shall do and live through them. I am the LORD.”
Bam! Punctuated twice with “I am the LORD.” Actually that proper name there. אֲנִ֖י יְהוָ֥ה ’ănî ’ăḏōnāy. And that first time, doubly personal, “I am the LORD your God.” אֲנִ֖י יְהוָ֥ה אֱלֹהֵיכֶֽם ’ănî ’ăḏōnāy ’ĕlōhêḵem. And note the repeated possessive declarations, my laws (mišpāṭay, מִשְׁפָּטַ֧י) my statutes (ḥuqqōṯay, חֻקֹּתַ֥י) with those ay pronominal suffixes. We see this again and Leviticus 19:37 and 26:3.
Let’s look at some commentary. And I’m getting these quotes from Hayes’s book. First from Max Weber. And this one is interesting if you recall C.S. Lewis’s comments about the Tao:
“The law [created by covenant or berith with [the LORD]] was no eternal Tao or Dharma, but a positive enactment … God’s ordainments come from his hand and are as such changeable. He may bind himself to His enactments by berith, but that is the result of His free resolve.” (Weber, Ancient Judaism)
“A positive enactment.” This gets referred to as positivistic. For example from Anthony Kronman, commenting on Weber here:
“[The] conception of God as a transcendent creator implies a view of religious authority that is essentially positivistic. The norms which the followers of such a God are required to observe are binding not because they are the expression of an eternal and uncreated natural order but because they are the commandments of god and have been deliberately enacted by Him.” (Kronman, Max Weber)
So in contemporary legal theory there are two primary models for understanding the nature and authority of law. The two big ones are legal positivism and natural. For legal positivism the view is that “law is a body of rules expressing the will and enforced by the power of lawmakers and their agents or institutional equivalents. The validity of an given law turns on social facts–it’s promulgation by structures or institutions of governance whose authority to produce law is socially accepted–rather than the merits of the law’s content.” (Hayes) So that certainly applies to the authority of a monarch, right? But that could also apply to democratic or republican government. One way of looking at our laws is that it’s just what we’ve decided to do as a nation, or state, or city, what have you. There’s no way we could be right or wrong because we’re the ones who decide. And that makes sense to an extent. But we tend to feel there’s more to it than that, right? Like, the slave states really were wrong to have legal slavery. That wasn’t something that was OK at the time because they had agreed to do things that way.
So the other view is natural law. “Natural law predicates the validity of any given law on its conformity to some criterion of character, quality, or content. These criteria are variously articulated, but classical natural law theory considers valid only such laws as conform to universal reason.” (Hayes, italics added)
So the natural law is the Greek view and Weber is saying the biblical view is positivistic. Which sounds kind of like it would belong in modernity, like it would be something highly technocratic. But it’s definitely not that. I think “personal” or “covenantal” more than “positivistic” carries a more appropriate connotation. Still the jarring connotation of “positivistic” has the benefit of grabbing our attention and getting us to look at it in a different way. Hayes has an interesting way of talking about this. She says that “Specifically, divine law is represented as particular rather than universal, arbitrary rather than rational, evolving rather than static, coercive rather than instructive, and as addressed to obedient servants. And I think for us Westerners were sufficiently Hellenized that not all of those sound all that great to us. “Arbitrary” doesn’t sound all that great. But I think we can look at it in a more sympathetic light. A more personal, familial way.
Let’s talk about the way divine law in the Bible is particular rather than universal. It’s really quite explicit about this. And it’s tied to Israel’s status as a chosen people. Let’s look at Deuteronomy 7:6.
“For you are a holy people [‘am qāḏōwōš, עַ֤ם קָדֹושׁ֙] to the LORD your God: you the LORD has chosen to become for him a treasured people [lə-‘am səḡullāh, לְעַ֣ם סְגֻלָּ֔ה] among all the peoples that are on the face of the earth.”
And here when it says “you” that’s ’atāh (אַתָּ֔ה), the singular “you”, very personal. Bəḵā bāḥar ’ăḏōnāy (בְּךָ֞ בָּחַ֣ר ׀ יְהוָ֣ה) “you”, singular, “the LORD has chosen”. I’ll read a bit from Hayes here:
“To be consecrated or sanctified (q.d.sh) to [the LORD] is to be separated to [the LORD’s] service, [we could “set apart] through the observance of his rules and commandments, and from alien peoples and their practices. Here and elsewhere in Deuteronomy, Israel’s particular and unique relationship with Yahweh is expressed by the verb baḥar = to elect, or choose.”
And another interesting word that’s used in this verse is that səḡullāh (סְגֻלָּ֔ה). Very nice sounding word actually, I think. For readers of the King James Version you sometimes see that translated as “peculiar”, though they didn’t do it in this verse. But in other places they’ll translate ‘am səḡullāh (עַ֣ם סְגֻלָּ֔ה) as “peculiar people. And we sometimes think, oh, that’s because God’s people are kind of unusual or we’re a little bit quirky sometimes. And that may be true as well but what this term is really getting at is that the LORD’s people are a treasured people, which is older meaning of “peculiar”, right. The sense of “strange” started in the early 17th century but the older meaning, from the Latin peculium, is property, similar to the Hebrew səḡullāh (סְגֻלָּ֔ה).
Let’s read from Hayes again on this:
“In these and other passages, biblical divine law is strikingly particularistic. It is designed to bring one nation among all the nations into a covenantal relationship with a sovereign ruler and enable it to live in a particular place—the land of Canaan. Indeed, according to some passages, the divine law’s purpose is precisely not to promote universalism and sameness but to ensure the opposite—particularism and difference.” (italics added)
OK, that’s very interesting. Let’s look at some examples. And here we get into some verses that look like they might even be holdovers from older, maybe not so entirely universally monotheistic asserting traditions. So for example, Deuteronomy 4:19-20.
“Lest you raise your eyes to the heavens and see the sun and the moon and the stars, all the array of the heavens, and you be led astray and bow down to them and worship them. [And here’s the really fascinating part] For the LORD your God allotted them [ḥālaq, חָלַ֜ק] to all the peoples under the heavens; But you did the LORD take [lāqaḥ, לָקַ֣ח] and he brought you out from the iron’s forge, from Egypt, to become for him a people in a state as this day.” (italics for emphasis)
So there’s a big contrast here. The LORD is telling the people Israel, look, I’ve given all these elements of nature, the sun, the moon, the stars to all the other groups of people in the world. Almost sounds like, yeah, that’s fine for them to do. But that’s not for you. You’re different. You’re mine. This word ḥālaq (חָלַ֜ק) where God is allotting these natural elements to the other nations this is used in the biblical texts as a kind of divvying up, like dividing up the spoils and dividing up an inheritance, you’ll see it used. And here Israel is set apart as particular, as peculiar in that older sense. We see this again in Deuteronomy 32:8-9.
“When Elyon gave estates nations, when he split up the sons of man, he set out the boundaries of peoples by the number of the sundry gods. [A lot there we could talk about but let’s not get sidetracked] Yes the LORD’S portion [ḥêleq, חֵ֥לֶק] is his people, Jacob the parcel of his estate.”
And that noun there for “portion”, ḥêleq (חֵ֥לֶק), comes from the word we saw earlier ḥālaq (חָלַ֜ק), for allotting, here an allotment, the LORD’s allotment being Israel. One more quick example, in Leviticus 20:24b it says:
“I am the LORD your God who set you apart [’ăšer hiḇdaltî, אֲשֶׁר־הִבְדַּ֥לְתִּי] from all the peoples.”
That setting apart is a very divine activity by the way. That verb badal (בָּדל), particularly in this causative, hiphil form, for the Hebrew grammar nerds, ləhaḇdîl (לְהַבְדִּ֕יל), is the same word we see in the first creation, “to divide”, where God divides the light from the darkness, the waters above from the waters below. This kind of setting apart is very important.
So that’s a basic presentation of the biblical view here and in the rest of the book Hayes complicates all this, right? So it’s not quite that cut and dry. But we can at least set that up as one end of this spectrum.
Ok, let’s talk about the Greek perspective or Greco-Roman perspectives. Hayes sets both the biblical and Greek views in terms of a number of discourses. So with the biblical outlook she talks about (1) divine law as an expression of divine will, (2) divine law as an expression of divine reason, which I haven’t gotten into yet but I will, and (3) divine law as historical narrative. With the Greeks there are even more discourses. She identifies 7 major discourses, 1 literary practice, and 2 legal practices in which divine natural law and human positive law are in some way juxtaposed. She gives each a label G-R for Greco-Roman, followed by a number. So we have G-R 1, G-R 2, and so forth. OK, so let’s go through this. I’ll talk about the 7 discourses and leave aside the literary and legal practices.
First discourse in Greco-Roman thought, G-R 1. This first discourse juxtaposes natural law and truth. So divine law as natural law. It’s a rational logos that is universal, immutable, and coupled with truth. And we this among the Pre-Socratics, the Stoics, Cicero especially. Cicero is a big figure in the natural law tradition. And this truth could be something like a platonic entity that subsists outside time and space. But not necessarily, the stoics didn’t adopt that kind of ontological realism. They were nominalists about truth. For them universals and abstract entities have existence but not outside time and space. They have existence in concrete things and in our minds. And as a side note this kind of ontology is another one of my major philosophical interests but I’ll get into that another time.
The second discourse, G-R 2, juxtaposes natural law and cosmopolitanism. Right reason (the natural law) in this discourse is the law of the world-city, or cosmopolis and it employs political terms in a metaphorical way to describe a universal community of gods and persons of wisdom and virtue. So a classic example of this kind of cosmopolitanism is the Cynic Diogenes. Where are you from Diogenes? “I am a citizen of the world [kosmopolitês, κοσμοπολίτης].” According to the Stoics like Cicero the only true city is the community of gods and humans governed by the law of right reason. So this is very different from the biblical particularity, right? There’s no special people here. No one set apart, except by reason. And that’s a universal standard.
The third discourse, G-R 3, juxtaposes human law and virtue. And here were starting to get into what Hayes calls the positive law discourses. And these will present human law in a negative light, why it’s deficient. So this discourse focuses on virtue and concludes that unlike natural law, human positive law is inadequate for the attainment of virtue. The rule of law is deemed a second-best regime necessitated by a failure of education. Law that promotes self-rule through the acquisition of knowledge is preferred to law that promotes self-rule through discipline and habituation. It’s better for people to be educated and govern themselves. It reminds me of Immanuel Kant’s idea that law should be “autonomous” and basically self-imposed because as rational people we just see that this is the right way to live, rather than having law be “heteronomous” and imposed from the outside.
Discourse 4 is interesting, G-R 4 because it touts the flexibility of natural law. So it’s natural to think of this transcendent law outside space and time as inflexible and in an ultimate sense, yeah, it may be unchanging. But when we get into the particular cases where law is applied natural law is comparatively and sufficiently general, as it would have to be. And the problem with human law is that it can be too particular and tied down to a narrow range of specific cases and doesn’t accommodate what from the more general perspective of natural law are very reasonable exceptions to these particular rules. Hayes puts it this way:
“What is a positive trait in the case of the perfect divine law–immutability–is precisely a dangerous trait int he case of the imperfect human law.”
And just because I find this discourse kind of interesting I want to read another quote. This is from Plato’s Statesman:
“Law [νόμος] can never issue an injunction binding on all which really embodies what is best [ἄριστον] for each; it cannot prescribe with perfect accuracy what is good and right for each member of the community at any one time. The differences of human personality, the variety of men’s activities, and the inevitable unsettlement attending all human experience make it impossible for any art whatsoever to issue unqualified rules holding good on all questions at all times.” (Statesman, 294a10–b6, cf. 294e–295b)13
OK, the fifth discourse concerns the opposition of Phusis and Nomos. Phusis (φῠ́σῐς) is nature and nomos (νόμος) is convention. And this starts off a little bit like Rousseau in the French Enlightenment. We’ve got this idyllic state of nature contrasted with this fallen state where the laws of man govern us imperfectly. For Hesiod there was this golden age. And here’s Ovid talking about it in the Metamorphoses:
“Golden was that first age, which, with no one to compel, without a law, of its own will, kept faith and did the right. There was no fear of punishment, no threatening words were to be read on brazen tablets; no suppliant throng gazed fearfully upon its judge’s face; but without punisher lived secure.” (1.89–93)
But then we get a reversal of this. See, the discourses are real discourses. The Epicureans see us being rescued from phusis by nomos. Then we also have a more complex view where, yes nomos rescues us but it’s not fully adequate. Here’s a good passage from Antiphon’s On Truth:
Justice (dikaiosunē) therefore, is not violating the rules (nomina) of the city in which one is a citizen. Thus a person would best observe justice to his own advantage if he paid heed to the laws (nomoi) when in the presence of witnesses, but to the demands of nature (phusis) when not in the presence of witnesses. For the demands of the law are adventitious, those of nature are inescapable … Thus someone who violates the laws avoids shame and punishment if those who have joined in agreement do not observe him, but not if they do. But if someone tries to violate one of the inherent demands of nature, which is impossible, the harm he suffers is no less if he is seen by no one, and no greater if all see him. (CPF 1.1.192–94 = DK 87 B 44; as cited in Winton 2000, 97)
The sixth discourse see positive law as being in need of a savior. And we see this a lot in Plato. Logos is the “savior” of the positive law, which in itself is incapable of leading to virtue.
“According to Plato, the law’s inability to bring humans to their highest virtue, its inflexibility in the absence of an expert statesman, and its failure to deliver justice tailored to specific circumstances undermine its authority, rendering it unstable and in need of rescue by a savior (soterion, σωτηρίαν). This rescue comes in the form of persons of discernment whose commitment to reason, the logos, and the idea of virtue qualifies them to interpret and guide the law toward its goal of virtue, thus securing its authority. These ideas appear in the Laws. Near the end of the dialogue, the Athenian Stranger asserts that positive laws will always be unstable if there is no loyalty to the law in the soul. The laws are not established on a firm foundation and will not endure unless they have an irreversible quality. The laws are therefore in need of a “savior”—that which implants this irreversible quality in the laws is the “salvation” or “savior” of the law (soterian ton nomon; σωτηρίαν τῶν νόμων; 960d).
The seventh discourse praises written law. Written law is the mark of civilized man. See this idea as early as Homer’s Odyssey (9.114–15), where the brutish, cave-dwelling Cyclopes are said to “have no shared laws (themistes), no meetings for counsels (boulῆphoroi agorai) … each one sets the law for his own wives and children, and cares nothing about the others.” And there’s a positive discourse present in the culture about a consistent standard of justice, an isonomia.
So there’s a lot going on there in the Greek world. Yes, they have this view of natural law, that divine law comes out of nature, that it’s rational. So there are some obvious differences there from what we saw in the Bible. But it’s complex, right? There’s a lot of back and forth, dialectic going on. So what do we see on the Hebrew side. Well, some very similar stuff. They’re coming at this from the other end of the spectrum but it’s also very complex. And what adds to this is that this cultures converge. Judaism undergoes a lot of Hellenization but the Greco-Roman world also gets heavily influenced by the biblical tradition, certainly through the eventual, effectively universal conversion to Christianity, which conveys a lot of these biblical ideas in modified form. But even before that Judaism is very influential in the Greco-Roman world. It wasn’t dominant. They weren’t running the empire. But it’s there. There’s a definite presence.
So during all the Hellenization or at least Greek influence Jewish intellectuals are responding to these different ideas. And they’re pulling on resources in the Bible to find compatibility with a more natural law kind of view. That yes, maybe these laws were given by a personal God but they’re also rational and maybe even independently derivable. So given by revelation definitely, but maybe they wouldn’t have to have been at least in principle. And this is the kind of stuff I find fascinating, when you get these intellectual challenges from the outside it seems to be a very productive dialectic. And I think there’s definitely something on the right track here. I mean, I’m a theist and also a Platonist, at least about some things. I think physical law has some kind of transcendent basis outside space and time. And it seems perfectly possible to locate that in the mind of God as it’s “metaphysical address”, as one philosopher Peter Kreeft has put it. I’m not so sure about laws of conduct. I still think those might be particular to the point where I think the original biblical view was closer. But I’m still thinking about all this.
So let’s look at some of these Jewish responses and their biblical sources. The Hebrew Bible takes pains to represent the laws of the covenant at Sinai as “positive laws issuing from the LORD’s sovereign will”. But narrative texts dealing with the pre-Sinai period “occasionally assume the existence of a self-evident moral order of universal validity”. One example is Cain. So we read the story of Cain killing Abel and automatically think, yeah, that’s wrong. And apparently so does the LORD, right? Cain gets punished for that. He’s called to account for that. But… the LORD had never given an express commandment against murder. That’s what we’d need for positive law, right?
“The culpability of Cain rests on what has been described as the unexpressed assumption of the God-endowed sanctity of human life (Sarna 1966, 31). Despite the absence of an explicit positive law prohibiting murder, Cain is culpable because the sanctity of human life is an implicit universal moral law. It is not until Genesis 9:6 that the sanctity of human life is additionally expressed as a positive injunction of the divine will in the covenant with Noah, despite the principle’s operation prior to that injunction.”
Other examples of this include the LORD’s decision to destroy the world by flood because of violence (ḥămas, חָמָס), see Genesis 6:11-13 a. There wasn’t a violation of divinely revealed positive law there. But the violation is of “implicit and universal moral laws that make life in society possible”. And this seems very rational, right? Like the kind of things the Greeks would like. Violence, (ḥămas, חָמָס), is just not a stable practice, it’s not a playable game or a workable system. Almost seems like you could see a kind of Kantian Categorical Imperative here. Violence just isn’t universalizable. You can’t will for it to be a universal maxim. We also see this with the condemnation of Sodom and Gomorrah, which is a very interesting example of oppression and the moral import of the voice of the oppressed. We read in Genesis that there had been an outcry (za’ăqaṯ, זַעֲקַ֛ת) or (ṣa‘ăq, צָעַק) against Sodom. And this outcry carries some kind of moral weight. And I think that’s our natural human response. Even foundational, I think to morality, itself. And that’s an interesting topic, how our rational and our empathetic faculties work out in our moral sense.
So there are some Biblical examples. I want to jump ahead a little bit to one of my favorite Jewish philosophers, Philo of Alexandria. And this is a really interesting guy, someone I’d like to study in more detail. But he’s totally emblematic of this cross-cultural exchange that I find so fascinating. That’s probably a lot of what draws me to him. Also that he’s a Platonist and a theist in the biblical tradition like I am. So I figure he has some valuable things to say to me.
Philo lived in the first century, about 20 BC to 50 AD. Obviously lived in Alexandria, which is in Egypt, very much not in the land of Israel. He was a diaspora Jew who spoke Greek and was embedded in Greek culture. And you could say he saw the Hebrew Bible and the traditions of his people through a Greek lens. So Philo asserted an equivalence between the Greco-Roman and biblical conceptions of divine law. This was the project of his writings, to demonstrate this. He wanted to show that the Torah of Moses possess all the the properties and qualities of Greek natural law: “it is self-identical with universal truth, which entails its rationality, its immutability, and its unwritten character.” (Hayes)
And he knew the way Greeks wrote. He was very familiar with the style and what would pass for credible writing in that culture. There was a Greco-Roman tradition of evaluating constitutions of real states and comparing them to an ideal divine standard. This is what we say in G-R 7, Greco-Roman discourse 7, where written law is highly valued and seen as a mark of civilization. Cicero looked at the Roman constitution and determined that it did in fact conform to divine natural law. But often in these sorts of discourses the writer’s native constitution fell short. We see this Plato’s Laws dialogue. Reminds me of James Madison in all his historical research on the various states and their constitutions as he was gathering empirical evidence to prepare the United States constitution. Very Greco-Roman. With Philo he’s going to be like Cicero in vindicating his native constitution, though of course in his case this is the Mosaic Law in the Torah. Philo argued that biblical law did possess the attributes of divine natural law and that it was none other than the divine natural law. It’s actually equivalent to it.
Philo applied these Greco-Roman discourses to demonstrate that Torah is “the natural law, the universal logos of the cosmopolis or world-city.” Torah is truth. Torah is “eternal and absolutely unchanging”. Torah is not arbitrary, or an “expression of a sovereign will consisting of commands and prohibitions enforced by rewards and punishments, but a rational teaching or instruction addressed to non-coerced, rational individuals. And Torah is originally unwritten; it predates its actual writing.
Let’s look first at this claim of equivalence of the Torah to the universal Logos. Philo says this his work, Life of Moses:
“Thus whoever will carefully examine the nature of the particular enactments [enactments of the Mosaic law] will find that they seek to attain to the harmony of the universe and are in agreement with the principles of eternal nature.” (Life of Moses 2:52)
So there’s a difference in emphasis here. It’s not as personal. Not as much about devotion to the LORD, though Philo certain affirms that too. But he talks in terms of conformity to principles of eternal nature, harmony with the universe. But it’s more than just that, more than just conformity and harmony, more than simply a parallel track. He’s talking identity here. The positive Law of Moses is the universal law of nature. Again from Philo:
“Justice and every virtue are commanded by the law of our ancestors and by a statue established of old, and what else are laws and statues but the sacred words of Nature?” (Special Laws 2.13)
Yes, the law was revealed in history. It was in fact positivistic. But that doesn’t mean that it is not in principle also the universal law of nature. You could imagine a naturally gifted mathematical genius coming up with Euclid’s geometry independently. That’s not how most of us learn obviously. Most of us learn mathematics from some authority. We don’t figure it out on our own. But in principle a person could do that. And I think Philo is thinking something similar here. In principle you could have a genius who figures out the Mosaic Law on their own. Even though almost everyone learns it by revelation.
Another interesting thing about Philo is that he dispenses with the Israelite particularity. He sees Torah as universally applicable. It’s the cosmopolitanism we say in G-R 2. Here’s Philo:
“The world is in harmony with the Law and the Law with the world, and the man who observes the Law is constituted thereby a loyal citizen of the world, regulating his doings by the purpose and will of Nature, in accordance with which the entire world itself also is administered.” (De opificio 3)
This is intended for all humankind. And in an intriguing reversal he talks as if it’s everyone else who’s particular. Israel is the universal that everyone else needs to conform to. He says each nation needs to “abandon its peculiar ways, and, throwing overboard their ancestral customs, turn to honoring our laws along..” (Life of Moses 2:44) A fascinating take there. And remember how I was talking earlier about how you could draw on pre-Sinai accounts in Genesis to see an implicit natural law, like with Cain, the destruction of the Flood, Sodom and Gomorrah. Philo says something similar in his arguments about cosmopolitanism. He determines that the reason Moses prefaced the account of the giving of the Law to Israel at Sinai with the story of the creation was to signal that the Law is intended for all world-citizens, not Israel alone. Here’s Philo in Life of Moses:
“We must now give the reason why he began his lawbook with the history, and put the commands and prohibitions in the second place. He did not, like any historian, make it his business to leave behind for posterity records of ancient deeds for the pleasant but unimproving entertainment which they give; but, in relating the history of early times, and going for its beginning right to the creation of the universe, he wished to shew two most essential things: first that the Father and Maker of the world was in the truest sense also its Lawgiver, secondly that he who would observe the laws will accept gladly the duty of following nature and live in accordance with the ordering of the universe, so that his deeds are attuned to harmony with his words and his words with his deeds.” (Life of Moses 2:45–48)
And one reason it can be universally applicable in this way is because Philo believes that Torah is truth and that it is eternal and unchanging. I tend to think of Philo as an allegorizer and in a way he certainly was. But he allegorized in a very particular way. And in other ways he was very literal. Where he was allegorical was very similar to the way we moderns tend to be allegorical. So for example, he allegorizes Adam and Eve. Adam represents the mind and Eve represents the senses. And while I wouldn’t necessarily go along with that exact allegorization I certainly think the story of Adam and Eve lends itself to very rich allegory. But in many instances, particularly with law, Philo was highly rationalistic. The Bible is not a literary text for Philo. It’s not open to the kinds of literary criticisms that were being applied to Homer during his time. For Philo the Bible is rational and philosophical truth. We see this expressed adamantly in Exposition of the Laws.
This rational and philosophical truth also entailed for him that law is eternal and unchanging. And this was something he had to work hard at because there’s definitely lots of stuff in the Torah that has variations. In contemporary scholarship that’s attributed to it having multiple authors. But Philo insisted that the law was a uniform and consistent system that was perfect and unchanging. And he believes this is in contrast to the more ad hoc, constantly shifting laws of other nations. Here’s Philo again in Life of Moses:
(12) But that he himself is the most admirable of all the lawgivers who have ever lived in any country either among the Greeks or among the barbarians, and that his are the most admirable of all laws, and truly divine, omitting no one particular which they ought to comprehend, there is the clearest proof possible in this fact, the laws of other lawgivers, (13) if any one examines them by his reason, he will find to be put in motion in an innumerable multitude of pretexts, either because of wars, or of tyrannies, or of some other unexpected events which come upon nations through the various alterations and innovations of fortune; and very often luxury, abounding in all kind of superfluity and unbounded extravagance, has overturned laws … (14) But the enactments of this lawgiver are firm, not shaken by commotions, not liable to alteration, but stamped as it were with the seal of nature herself, and they remain firm and lasting from the day on which they were first promulgated to the present one, and there may well be a hope that they will remain to all future time, as being immortal, as long as the sun and the moon, and the whole heaven and the whole world shall endure. (15) At all events, though the nation of the Hebrews experienced so many changes both in the direction of prosperity and of the opposite destiny, no one, no not even the very smallest and most unimportant of all his commandments was changed, since every one, as it seems, honored their venerable and godlike character; (16) and what neither famine, nor pestilence, nor war, nor sovereign, nor tyrant, nor the rise of any passions or evil feelings against either soul or body, nor any other evil, whether inflicted by God or deriving its rise from men, ever dissolved, can surely never be looked upon by us in any other light than as objects of all admiration, and beyond all powers of description in respect of their excellence. (17) … it may fairly by itself be considered a thing of great intrinsic importance, that his laws were kept securely and immutably from all time.” (Life of Moses, Book II)
Philo also sees the Mosaic Law conforming nicely to the 3rd Greco-Roman discourse on the divine law’s educative function, leading to self governance, without need for compulsion or punishment. Rational law doesn’t have to compel by force because it makes sense and persuades and Philo sees the Mosaic law this way. He says:
“Moses, thinking that … issuing orders without words of exhortation, as though to slaves instead of free men, savored of tyranny and despotism, as indeed it did … took a different line in both departments. In his commands and prohibitions he suggests and admonishes rather than commands, and the very numerous and necessary instructions which he essays to give are accompanied by forewords and after-words, in order to exhort rather than to enforce.” (Life of Moses 2:50–51)
Now, this made me think a little bit. Is that accurate or is this just wishful thinking on Philo’s part? Where is he getting this from? But as I’m thinking about it I can thinking many parts of the Bible where there is exhortation not just to do what the law says but also to internalize it. In Deuteronomy 6 for example, with the Shema. Love the LORD your God with all your heart, soul, and strength (Deuteronomy 6:5). These word shall be in your heart (‘al-ləḇāḇeḵā, עַל־לְבָבֶֽךָ) (Deuteronomy 6:6). Talk about it all the time with your children, when you’re sitting at home, when your walking along, when you lie down, when you rise up. Integrate it fully into your life. I can see this comprehensive, soul-forming, educative function of the law. That what we’re seeing here is not just enforcement but a thorough crafting of identity. And per Philo an identity that is in harmony with the order of the universe and the eternal law of nature.
OK, one more thing on Philo that I find really interesting is this idea of Torah as unwritten law. And of course we have to ask, Philo what are talking about? Of course the Torah is written. And yeah, of course it is. But Philo’s getting at something more fundamental here. And it’s another very Greek way of looking at things. So if you think of Plato we have the eternal form (eidos, εἶδος) and then we have physical instantiations of those forms in the world. Philo says something very similar of Torah:
“[T]o carry out our examination of the law in regular sequence, let us postpone consideration of particular laws, which are, so to speak, copies (eikonon, εἰκόνων), and examine first those which are more general and may be called the originals (archetupous, ἀρχέτυπος) of those copies. These are such men as lived good and blameless lives, whose virtues stand permanently recorded in the most holy scriptures, not merely to sound their praises but for the instruction of the reader and as an inducement to him to aspire to the same; for in these men we have laws endowed with life and reason, and Moses extolled them for two reasons. First, he wished to shew that the enacted ordinances are not inconsistent with nature; and secondly that those who wish to live in accordance with the laws as they stand have no difficult task, seeing that the first generations before any at all of the particular statutes was set in writing followed the unwritten law with perfect ease, so that one might properly say that the enacted laws are nothing else than memorials of the life of the ancients, preserving to a later generation their actual words and deeds. For they were not scholars or pupils of others, nor did they learn under teachers what was right to say or do: they listened to no voice or instruction but their own: they gladly accepted conformity with nature, holding that nature itself was, as indeed it is, the most venerable of statutes, and thus their whole life was one of happy obedience to law.” (On Abraham 1:3–6; emphasis added)
So the Torah’s written laws are copies of more general unwritten archetypes. And that’s how Torah is unwritten. In it’s archetypal form.
I think Philo is onto something here. I this syncretism between the biblical and Greco-Roman views was very productive and worth going back to study. Obviously, that’s why I’m doing it. And know I get more into my own reflections on all this, which are inconclusive but I have my present inclinations. I think Philo’s identification of natural law with the LORD God of the Bible is to some extent correct. Particularly with physical law. That’s the kind of law Yuval Harari said we don’t even bother moralizing about because it’s not even possible to violate. I also think there are divine laws of conduct, both moral and ritualistic, like we see in the Mosaic law. But I’m not fully convinced that Philo’s identification works here. I’m more inclined to the earlier view Hayes sets up as more native to the Biblical texts themselves. These laws of conduct, moral and ritualistic laws, seem to be more personal, about a special and peculiar relationship. They seem covenantal, which seems to me in some way to mean that they constructed. And “construct” is kind of charged word these days, to say the least. But it also seems fairly applicable to a covenant.
I want to bring up one other book in addition to Hayes’s. And this is a different kind of book, it’s not about ancient history, the Israelites, Greeks, or Romans. This is about modern philosophy and Christian theology. It’s a book by James K.A. Smith called Who’s Afraid of Relativism?: Community, Contingency, and Creaturehood. And what it is is basically an orthodox Christian defense or case for a limited form of relativism. At least in some domains. And relativism is another one of those charged words. Are you a relativist? Well we’re all relativists about some things, maybe even most things. There are so many issues where “it depends” is very applicable. So I think it makes sense to say that some things are relative but not everything is relative. And I certainly don’t think everything is relative. I’ve said already I basically buy into the Greek view and Philo’s view of natural law in many areas. But in some things there may be an element of relativism and an orthodox perspective could be that many things are relative to God’s particular covenants, which sounds much less scary or threatening.
So one example could be dietary laws. Those don’t seem to be at all moral. They seem to be more of an identity-forming practice, something that establishes a unique community, among other things. Is it universally wrong to eat the flesh of pigs? No, I don’t think so. But the people of Israel don’t do it. We don’t drink alcohol in my community but I don’t think it’s a universal prohibition.
James K.A. Smith invites us to consider those aspects of Christianity listed in his subtitle: community, contingency, and creaturehood. Here’s Smith:
“[The] Christian reaction to relativism, with its therapeutic deployment of “absolute” truth, is a symptom of a deeper theological problem: an inability to honor the contingency and dependence of our creaturehood.
A remark on the terms here. In Christian theology everything in creation is contingent, meaning that it didn’t have to be the way it is or even exist at all. There’s nothing necessary about our being here. There’s only one necessity and that is God. And this is a very stark ontological division. So Smith is making the point that we shouldn’t forget that grasping for absolutes isn’t something we’re naturally cut out for. And I think he has a really good line on the nature of the creator-creature division, between necessary and contingent being:
“The Christian claim about contingency is not that everything is contingent but rather that everything created is contingent. Everything created depends upon the Triune Creator who, alone, is necessary.”
And that gets back to the limited relativism I was talking about. It doesn’t include everything. Certainly not. God is necessary and absolute. But much is relative, particularly to God. Here’s Smith again:
“Is Christianity synonymous with “objectivity”? Can finite humans hold “absolute” truths? What if the gospel is “relatively” true? Isn’t the truth of Christian faith relative to Jesus Christ? And isn’t our understanding of that story dependent upon the faith narrated in Scripture and handed down by tradition?…”
“Isn’t it the case that Jesus’s promise that the Spirit will lead us into all truth (John 16:13) is commenced at Pentecost, which is simultaneously the sending of the Spirit and the constitution of the church as the body of Christ, the “society” of the Spirit? True knowledge depends on God’s revelation, and receiving that revelation depends on the regenerating and illuminating power of the Spirit as the conditions for knowing, which requires being enfolded into that “people” who gather in worship, to hear the Word, illumined by the Spirit. Grasping the truth about God, the world, and ourselves is dependent upon being part of the “us” illumined by the Spirit, heirs to the gift of the Scriptures, and part of the community of interpretive practice that is the church (1 Cor. 2:6–16).38 So, in a sense, the answer to the question “Is Christianity true?” is the scandalous reply: “It depends.” It depends on the One in whom all things hold together (John 1:1–4; Col. 1:15–20). North American Christianity is especially allergic to the relativism and contingency highlighted by pragmatism precisely because we have become a people who are bent on security, comfort, and autonomy.”
Smith then, like Philo, appropriates elements of another philosophy in the service of Christian faith. But in his case he appropriates pragmatism, especially the thought of Richard Rorty. Rorty’s someone I’ve been studying a lot and whose ideas I find very compelling in many ways, which is kind of strange for a self-declared 21st century Platonist. Especially since Rorty had an express “antagonism towards Platonism” (Philosophy and Social Hope). But I enjoy dialectic. And where I go along with Philo in his acceptance of natural law stopping just short of laws of conduct I think Rorty may be on the right track with, what is essentially his moral relativism. But for a moral relativist he’s an exceptionally vocal and forceful proponent of moral values, the kinds of moral values most of us in Western Civilization would accept. And that’s just it. For him these values are relative to Western Civilization. The main adjustment, or maybe, mutilation of Rorty’s relativism I’d make is to relativize it to a covenant with God.
I’ll give some quotes from Rorty’s Philosophy and Social Hope to give you an idea of his views. This is from a chapter called “Ethics Without Principles”, a kind of playful title no doubt. He makes a distinction between morality and prudence.
“This distinction is traditionally drawn by opposing unconditional and categorical obligations to conditional and hypothetical ones. Pragmatists have doubts about the suggestion that anything is unconditional, because they doubt that anything is, or could be nonrelational.”
Rorty questions the idea that “absense of immutably fixed and universally applicable ready-made principles is equivalent to moral chaos.” This reminds me of the idea you sometimes here about atheism. Like that if you don’t believe in God why don’t you just murder people? But there are definitely reasons not to murder people beyond there being a transcendent any eternal law against it, even it there is one, right? That wouldn’t be the only reason not to do it. Because people still care about other people. Their suffering disturbs us. At least the suffering of some people. Rorty sees this kind of sensitivity as central to morality. And as I read these quotes I’d like to remind you of the parts in Genesis where God is paying head to the cries of suffering of the victims. For example when Cain kills Abel, the voice of his blood (qōwl dəmê, קֹ֚ול דְּמֵ֣י) cries out from the ground (ṣō‘ăqîm min-hā’ăḏāmāh, צֹעֲקִ֥ים מִן־הָֽאֲדָמָֽה). And the cries of the people against the oppressions of Sodom and Gomorrah. Rorty says:
“So it is best to think of moral progress as a matter of increasing sensitivity, increasing responsiveness to the needs of a larger and larger variety of people and things.”
For Rorty this centrality of sensitivity and responsiveness makes an absolute standard of moral truth pretty much superfluous. And it also bypasses potential epistemological problems and concerns of getting moral questions right. And he makes a comparison here to progress on knowledge in general.
“The trouble with aiming at truth is that you would not know when you had reached it, even if you had in fact reached it. But you can aim at ever more justification, the assuagement of ever more doubt. Analogously, you cannot aim at ‘doing what is right’, because you will never know whether you have hit the mark. Long after you are dead, better informed and more sophisticated people may judge your action to have been a tragic mistake, just as they may judge your scientific beliefs as intelligible only by reference to an obsolete paradigm. But you can aim at ever more sensitivity to pain, and ever greater satisfaction of ever more various needs. Pragmatists think that the idea of something nonhuman luring us human beings on should be replaced with the idea of getting more and more human beings into our community – of taking the needs and interests and views of more and more diverse human beings into account. Justificatory ability is its own reward. There is no need to worry about whether we will also be rewarded with a sort of immaterial medal labelled ‘Truth’ or ‘Moral Goodness’.”
And true to the name this is very pragmatic. Rorty also doesn’t see much use for concerns about human nature as it pertains to moral conduct. In the Greco-Roman discourse of natural law this would have been central. Understanding the nature of man is essential to understand what is the nature of the good life for him. But Rorty observes that this concern has fallen out of favor and he sees this as a good thing. In another essay he says:
“As I see it, one important intellectual advance that has been made in our century is the steady decline in interest in this quarrel between Plato and Nietzsche about what we are really like. There is a growing willingness to neglect the question ‘What is our nature?’ and to substitute the question ‘What can we make of ourselves?’ We are much less inclined than our ancestors were to take ‘theories of human nature’ seriously, much less inclined to take ontology or history or ethology as a guide to life. We are much less inclined to pose the ontological question ‘What are we?’ because we have come to see that the main lesson of both history and anthropology is our extraordinary malleability. We are coming to think of ourselves as the flexible, protean, self-shaping animal rather than as the rational animal or the cruel animal.”
What’s important for Rorty is that sensitivity to the pains and needs of the others. He’s no as interested in whether man is inherently endowed with objective inalienable rights. For him that’s not the reason not to commit atrocities:
“To say that respect for human rights demanded our intervention to save the Jews from the Nazis, or the Bosnian Muslims from the Serbs, is to say that a failure to intervene would make us uncomfortable with ourselves, in the way in which knowledge that our neighbours are hungry while we have plenty on the table ourselves makes us unable to continue eating. To speak of human rights is to explain our actions by identifying ourselves with a community of like-minded persons – those who find it natural to act in a certain way.”
OK, so what to make of this? I think there are some useful ideas here. I think Rorty is right about the importance of sensitivity. And I think there’s consistency with biblical ideas there. And maybe even more than is obviously apparent on the surface. So the idea of being affected by the outcries of the victims is one parallel. But also just the positivistic, relational nature of law as Hayes presents it in the biblical texts. Rorty says we don’t need to be “rewarded with a sort of immaterial medal labelled ‘Truth’ or ‘Moral Goodness’.” We don’t need to have this eternal, absolute standard. In in the biblical texts that’s also arguably the case. We don’t need that because we have God and we have the covenant with God.
I want to clarify this a little more because I react to myself even saying this because it sounds kind of fideistic and anti-intellectual. Oh, don’t worry about it, God takes care of everything. So let me try to talk about this a little differently. A lot things aren’t matters of knowledge of facts they’re matters of relationships. They’re just different kinds of things. A marriage isn’t true or false by conformity to something we can go out and discover in nature. It’s something couples have to work and together and create with each other. And marriage is often even made as a covenant. So in saying that with Mosaic law we don’t need this absolute standard because we have God it’s not an instance where we’re just throwing up our hands in resignation and saying, oh, can’t figure it out. Let’s just say God’s got this one. God of the gaps kind of thing as it’s sometimes ridiculed. No, it’s more like the marriage case. It’s not a fallback it’s an intentionally relational thing. So I think Smith and Rorty are on the right track in certain ways. I especially like Smith’s orthodox Christian take on this. It’s kind of funny he says in his book, look “don’t think I’m trotting this out as a prelude to offering you a ‘progressive’ Christianity… I can pretty much guarantee I’m one of the most conservative people in the room.” So I think it’s kind of funny that he’s promoting Rorty, one of the most radical, iconoclastic philosophers in history, in the service of this, really very orthodox Christian theology. I think that’s kind of fun.
So I like that. But I also come back to Philo in thinking that there’s also some truth to the moral objectivity. I’m totally with Philo that there is an eternal Logos, a transcendent rational order to reality. I think this is what governs and produces the physical laws of nature and, in Christianity, is Christ. That’s the identification made by the Gospel of John, in the beginning was the Word, (En archē ēn ho Logos, Ἐν ἀρχῇ ἦν ὁ Λόγος). I think there’s definite a possible hybrid of the two views here. Yes, there is a transcendent and eternal rational order to reality. Yes, there is a personal God. They’re the same thing. God is the one necessary, non-contingent thing. So that there’s the question of what things are necessary and what things are contingent. I’m inclined to say that laws of conduct are contingent but not arbitrary. For one thing, the laws of God are given by God so that’s a very good reason to take them seriously. But I also thing there are what the legal theorist Robert P. George has called “God’s reasons”. I don’t go quite so far with Rorty in downplaying questions about human nature. Yeah, human nature has a lot of free play. We are able to shape ourselves to a wonderfully wide extent. But… there are definite constraints. And these shape our morality.
A pithy little line I’ve been bandying about in my head recently is: Humans are flammable. OK, what the heck? What’s that supposed to mean. Well, humans are flammable and that’s pretty darn significant. If you subject a human to a flame they’re going to burn and that person’s body is going to be severely damaged and possibly even die. And if you’re sensitive to a person’s needs and pain that would definitely be something to refrain from doing. This is that non-arbitrariness to morality. So if we take Rorty’s idea seriously that moral progress as a matter of increasing sensitivity we’re going to have to pay attention to features of human nature. I concede to Hume that there’s nothing int he objective facts of nature that entail that one ought to respond in a certain way. But if sensitivity and care is presupposed we can’t do without those facts. You might say you can’t deduce an ought from an is, but you need the is to define the ought. Knowing that humans are flammable doesn’t entail that you shouldn’t burn them. But if you start off wanting to do what’s best for people and to not cause them pain knowing that humans are flammable is a pretty useful thing to know. And it makes a difference.
OK, that was a lot. Wrapping up here, I’ll review the main points we got into. We have the Israelites and Greeks with two different conceptions of the nature of divine law. For the Israelites law is divine because it’s given by decree from God. For the Greeks law is divine because it’s grounded in a transcendent and eternal order to nature, a natural law. Greco-Roman thought has multiple, ongoing discourses around this and Judaism responds to Hellenizing influence by looking for points of compatibility. This comes to fullest fruition in the works of Philo of Alexandria. Skipping to modern times, we’re confronted with ideas like pragmatism, postmodernism, and relativism, that would seem to threaten religious faith. But James K.A. Smith notes, consistent with Christine Hayes, that in some sense these trends might actually be more compatible with more original biblical views of divine law. They bring us back to ideas of contingency, which accord well with our creaturehood, as beings created by God the only necessary being. And ideas of social constructs are more consistent with communal and relational covenants that set out our rules of conduct.
I’ll wrap it up there for now. I’m planning on doing several more interviews with friends and other interesting people. And some more solo episodes on things I find interesting. Including some ideas I touched on briefly here. Thanks for listening. And see you later.