Divine Law and Modernity

AARON TUGENDHAFT
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Herg1

hat kind of book is Rmi Bragues The

Law of God?* Its subtitle calls it a history and Brague says in
the preface that he will study the idea of divine law over the
long term. As such, the book falls into the genre of history
of ideas, and the erudition this Sorbonne professor brings to
bear on the topicapparent from even the most cursory perusal of the notesshould immediately make Bragues book
a modern classic of the form. Comprising innumerable minidissertations on topics ranging from Persian imperialism to
medieval Sufism to Kantian ethics, The Law of God begins
by explaining how the Greek idea of divine law rooted in nature differs from the Old Testament idea of a law given by
God. The greater part of the book then pursues how this latter idea has been variously articulated in Judaism, Christianity, and Islam, culminating in two all-too-brief chapters on
modernity. One can become fascinated by the details but finally a bit puzzled by the lack of explicit synthesis. Closer examination makes one suspect that despite its encyclopedic
learning this book is no mere work of historical scholarship.
This may result from the fact that Bragues ultimate concern is not itself historical. After all, Brague is a professor of
philosophy, author of books on Aristotle, and editor of the
French edition of Leo Strausss essays on Maimonides.
*Rmi Brague, The Law of God: The Philosophical History of an
Idea, Lydia G. Cochrane, tr. Chicago: University of Chicago Press,
2007. 363 pages. $35.00.
arion 15.3 winter 2008

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Bragues subtitle in fact presents the work as a philosophical

history. What, one might ask, is a philosophical history? By
choosing this designation does Brague mean to distinguish
his work not only from the history of ideas but also from the
philosophy of history? On the one hand, Bragues book
seems to share with the great philosophies of history a preoccupation with the meaning and status of modernity, but on
the other, it doesnt seem to possess a philosophy of history.
If Bragues purpose is not to elucidate the meaning of the
flow of history, one begins to wonder how Bragues elaborate
history might otherwise be philosophical. Has Brague chosen
to convey a philosophical teaching in the guise of an historical narrative? And if so, why? What is it about this teaching
that it requires to be conveyed in the form of a narrative?
Only by reading his narrative judiciously can we begin to understand what Brague means by philosophical history.
1.
brague imagines a specific readership for his book, constructing his argument accordingly. Early on he writes: Our
word law derives from the Latin lex, which expresses a Roman notion. When we use it to render the Greek term nomos
or the Hebrew hoqq . . . we make an arbitrary choice (11).
Who is this we of whom Brague writes? As his next sentence makes clear, we are modern Western Europeans2
inheritors of institutions that have developed out of a
specific articulation of the idea of divine law. To borrow
from the title of another of his books, Brague wants his
readers to recognize how la voie romaine differs from other
ways. Not all divine laws are divine in the same way. With
painstaking precision, Brague shows how the three main
Abrahamic faiths have navigated the triangular structure of
political power, the divine, and the law, each in its own way.
Clarifying what distinguishes, say, Christianity from Islam is
necessary because often lost sight of. I shall insist on these
differences, Brague writes, and I shall do so in spite of the

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misunderstandings in the minds of medieval thinkers of all

confessions, who tended to confusefor examplethe functions of the caliph and those of the pope (122). One suspects that what was true of medieval thinkers, Brague
considers true today as well.
Bragues emphasis is on what distinguishes Christianity
from Islam. (His sensitivity to Jewish material is noteworthyparticularly in how his treatment works to reveal traditionally overlooked affinities between Judaism and its
daughter religion, Christianity. Ultimately, however, Judaism
is of less concern for his story because it is a religion without
an empire.) His bookboth explicitly and implicitlywalks
a reader through numerous details that set the two younger
religions apart. Take, for example, how each religion understands God, on the one hand, and man, on the other. Christianity conceives of divine omnipotence as a modality of
paternity, whereas in Islam Allah is not a father, and his
omnipotence stands alone (78). As regards their anthropologies, Islam supposes that all humans are born Muslim.
Christianity, for its part, presupposes that we are all born
men and only afterwards become Christian. One implication
of this difference is that for Islam the non-Muslimin the
measure in which he does not use reason, which should lead
him to know God and make him understand the interest that
he has in submitting to himis basically undistinguishable
from animals (163).
One further difference that separates these traditions is
worth noting, as Bragues treatment of it helps clarify the
rhetorical purpose of his book. Brague compares Islams approach to the Quran to how Christian tradition has read the
Bible. It is out of the question to subject [Quranic precepts]
to a reasoning that appeals from the letter of the law to the
intention of the legislator (73) whereas for Jesus, fulfilling
the law means interpreting it according to Gods original intention (6869). This gives Quranic precepts a totally different weight from biblical ones, in spite of a content that is
at times identical (73). The example Brague chooses to il-

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lustrate this point is tellingthe female veil.3 Whether or not

the parallel is philologically convincing, Bragues conclusion
that Pauls desire for women to be dressed decently can be
adapted according to the criteria in force in a given place and
time whereas it is hard to see how any interpretation of
[the Quran] could go beyond an explication of the length or
opacity of the veil (74) cannot but resonate with his contemporaryespecially Frenchaudience.
While guiding his readers to distinguish between Christianity and Islam, Brague also intermittently mentions how
commonly valued modern institutions have their roots in the
Latin Middle Ages. Brague knows that this will be counterintuitive for most of his audience, as it does not conform to
the story that the modern West normally tells itself. Take,
for example, the idea of democracy. Whereas most would
find its roots in ancient Greece, Brague maintains that the
modern institution owes more to the biblical heritageits
first seeds planted by ancient Israels critique of human kingship (47) and coming to fruition in Christian monasticism:
The model for modern democracy and its electoral procedures was not so much Athens, where choices depended on
drawing lots, but the medieval church (138). Brague makes
similar claims about liberalism and the idea of the individual
subject. Augustines political thought is said to be the origin
of the former (21516), whereas canon law, a medieval
construction, forged the individual who later became the
subject of the modern state (143). Such statements disrupt
a reader, throwing into question certain commonplaces
about modern society.
The grand rcit that Brague most wants to undercut is the
story by which modernity tries to explain itself as an escape
of the political from the domain of theology (4). This supposed disengagement has received several names: secularization of the world, laicization, and the separation of
church and state. Brague takes each to task on philological
grounds. Underlying the critique, however, is a desire to
present the supposedly modern value as itself at the core of

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Christian thinking about the political. For Judaism and Islam, no separation of church and state is theoretically
possible because in each the community is indissolubly religious and political whereas in Christianity, that supposed
separation is . . . made possible, in a certain sense, because it
never occurred at any assignable moment but has always existed (5). Once again, modern institutions do not represent
a break with Europes past but are rather the results of the
specific articulation between politics and the divine that occurred there. This articulation is the result of choices particular to Christianity among the three monotheisms. By
implication, one must not expect the same institutions to develop in societies that have chosen to understand the matrix
between politics and the divine differently. Modernity is not
the natural telos of humanity. The time has come, Brague
declares, to contest the explicative principle that underlies
all of these so-called evolutions, which is the idea that societies always and constantly drift in the same directionfrom
the sacred to the profanethrough an inexorable withdrawal of the sacred (5).
By means of this two pronged approachon the one
hand, highlighting the gulf between Christianity and Islam,
on the other, linking modern institutions to a Christian
baseBrague tries to unsettle any facile understanding his
readership might have of Islams place in the modern world.
Brague imagines his reader as a European who sees medieval
theocracy in monochrome. His narrative leads its reader
away from the common view of modern secular politics as
the antithesis of medieval religious politics, giving decisiveness instead to the rift between the Christian and Muslim
approaches to politics. In the process, the reader comes to
see himself and the institutions he values as more a product
of Christianity than his secular identity may have originally allowed. This, in turn, should cause such a reader
Brague seems to hopeto call into question any optimism
about the progressive liberalization of Islam.

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2.

though educating his European readership about Islam

may be Bragues urgent task, it is not his deepest concern. As
he lays out in the preface, the ultimate goal is to arrive at a
better comprehension of our own modernity (vii). Elucidating the other is only a means to arrive at better self-understanding. But to say that Bragues goal is to understand
modernity seems only a partial truth; this is a book with a
teaching (however veiled) and as such advocates change, not
just understanding. Brague is more forthright when he says
that his book aims to throw light on what is dubious in the
modern project itself (viii). The dubiousness of modernity
is linked to what modernity reproaches in the ages preceding it and with which it claims to break (viii). The link
Brague establishes between modern institutions and the
Latin Middle Ages is not where the story ends. Those links,
as we have seen, are an important mechanism in the polemic
Brague constructs against Islam. One should not take them,
however, as unambiguous justifications of the modern project itself. About democracy, Brague asks rhetorically: Do
not modern democracies, with their idea of the citizen, rely
on an anthropology that makes use of the consequences of
Christian ecclesiology, but without accepting the premises
that render that anthropology consistent? (5). Modern institutions might be unthinkable without their Christian base,
but today they stand ignorant of their foundation. While
modernity traditionally understands itself as the parting of
the ways of politics and religion, Brague proposes a counternarrative in which this division did not produce modernity
because it is in fact already intrinsic to the Christian approach to politics itself. If one must locate an origin for this
separation, it is the rethinking of the Jewish law begun by Jesus and Paul.
One result of this rethinking was the emergence of a new
type of social organization: the church. With the church
there arose, for the first time, a purely religious form of social

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organization with no national dimension . . . the unifying

principle was not political (66). This is not to say that politics disappears. When Paul famously states that there is neither Jew nor Greek, there is neither bond nor free, there is
neither male nor female: for ye are all one in Christ Jesus
(Gal. 3:28) his point is not to eliminate such divisions but to
refuse them definitive pertinence (67). With the new dispensation, the law is no longer decisive. Christianity introduces a
relation to God that goes beyond the framework of legislation (8). The context of practice shifts, such that ones deportment towards God is no longer understood as under law.
The Christian God is not a legislator, but rather a source of
aid and pardon that enables one to fulfill the law. The political remains in the form of the state, which receives all it demands in order to function as a statebut that is all. One
still renders unto Caesar, but never as if he were Godnor
does one render unto God as if He were Caesar. Idolatry of
the state is excluded (68). And that is to be understood in
both directions.
In its early centurieswhen the Roman Empire was not
just distinct from the nascent Christian church, but an enemythis division between religious and political authority
was easy enough to maintain. The decisive test came when
Christianity began to become Christendomwith Constantine. The temptation arose to shift the structure of Roman
power to God, as theorized by Eusebius of Caesarea. Nevertheless, institutions were eventually set in place that permitted the construction of a counter-power that could offset this
attempted unification. Something like a transparent membrane was formed to render the church distinct from the civil
power and prevent the one from absorbing the other (129).
The division that exists theoretically in the New Testament
eventually establishes itself institutionally, such that in the
fifth century Pope Gelasius could offer an explicit formulation of the separation of the church and the empire (130).
By painting Latin Christendom as a realm founded upon a
division between political institutions and the church,

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Brague is able to shift the terms of the standard debate.

Modernity cannot be the breaking away from medieval
theocracy, as the grands rcits tell us, if such theocracy never
existed in the Middle Ages. Rather, Brague presents modernity as the response to a late aberration of Christian politics,
telling the story of how, beginning in the late Middle Ages,
the Christian idea of divine law began to be reduced to a divine commandment, to pure imperative. The shift has roots
in the scholastic thought of Duns Scotus (d. 1308) and
William of Ockham (d. 1349), but comes to maturity with
the Swiss reformer Zwingli, for whom the law is none
other that the eternal will of God (237). The Reformationotherwise rarely mentionedtakes center stage in this
European reduction of the religious to the legislative.
Luthers ultra-Pauline position turned out, rather oddly, to
be a renewed valorization of the Old Testament (242). By
the end of this trajectory Christianity came to be perceived
in terms of juridical categories. As a result, in the eighteenth
century, both proponents and critics of Christianity debated
in terms of Jesus as Lawgiver of the Christianswhich is
to say, in terms far removed from the spirit of the New Testament and medieval Christendom.
In fact, with this new perspective on law, Christian theology begins to echo motifs that recall . . . the Muslim
Kalam (237). This echoing is also a feature of Bragues
prose. The new orientation is characterized by a focus on
obedience and a shift away from the filial relationship to
God. One cannot help but hear resonances with Bragues description, eighty pages earlier, of Asharite theology:
Certain Asharites even stated that the commandments have no other
aim than to reduce humankind to obedience . . . Unlike the Christian
view of it, the goal of creation is not the entry of a creature into the
divine life by adoption. Its goal is the submission of creatures to
God. The aim of the commandments of the law is uniquely to realize
the enslavement (taabbud) of man to God (166).

By structuring his narrative in this way, is Brague implying

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that a sort of Islamification began to take hold of Christianity in the late medieval period? How might this shed light
on what Brague finds to be dubious in the modern project?
Brague argues that this reduction of God to lawgiver, combined with the advances of early modern natural science, set
the stage for a dialectical reactionthe idea of a law that
was nothing but human. It is upon such a basis that Machiavellithe Latin faylasufcould instrumentalize the divine
as a product of the wiliness of certain particularly clever
men (240). Similarly, it ushers in Kants rethinking of the
entire field of moral reflection on the basis of the notion of
commandment (243). In this story, Kant appears as Pauls
doppelganger. Each confronted the idea of law as the imposition of a foreign will, but whereas Kant answers heteronomy with a shift to autonomy, Paul answers the challenge by
moving the central concern to a plane other than law.
Brague suggests his own preference when he concludes his
book with this pronouncement: It is not to be taken for
granted that the question of the nomos, the law, is a first
question (264).
In a paragraph discussing his concern that the Kantian
turn may have tyrannical consequences, Brague refers his
reader by means of a footnote to a chapter of Tocquevilles
Democracy in America. The chapter discusses the risks of
tyranny in American democracy, and one suspects that
Brague has the following sentences particularly in mind:
Omnipotence seems to me to be an evil and dangerous thing in itself. Its exercise appears to me above the strength of man, whoever
he may be, and I see only God who can be omnipotent without
danger, because his wisdom and justice are always equal to his
power.4

Tocqueville sees in the American experimentan experiment,

by the way, about which Brague is otherwise silenta dangerous assignation of absolute power to the people. Though
Tocqueville is not mentioned in the body of the text, Bragues
footnote quietly suggests a connection between Kantian au-

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tonomy and what the elder Frenchman observed in American

democracy. We are reminded of Bragues claim, quoted above,
that the democratic idea of the citizen is rooted in Christian
ecclesiology, despite the fact that today such premises are denied. What are the implications of such denial? Brague ends
his book on a melancholy note: There is nothing to prove
that the Western conception of the political is secure, or even
viable in the long run. Whether human action can unfold
freely, with no reference to the divine, rather than losing its
way in suicidal dialectics, remains to be seen (263).
3.
brague brings his story to a close with a discussion of three
prior historians of sacred law: Henry Sumner Maine, Johann
Jakob Bachofen, and Numa-Denis Fustel de Coulanges. By
choosing to end his narrative with these three figures,
Brague suggests a context for understanding his book. The
Law of God continues in the tradition of their works, but
also differs in a decisive respect. Their historicization of the
idea of divine law was in fact a highly honorable burial
(245). Writing in the 1860s, these authors overall perspective was one of progress and evolution. In their works, the
divine was reduced to the idea of a supposedly primitive
sacrality; purely rational legislation was to constitute the
program of an enlightened West. Brague does not share
these authors commitment to progress. More profoundly, he
rejects their conception of the decisiveness of history.
Though he has written a history, Brague is not a historicist.
Nor, we might add, is he a philosopher of history. Truth, for
Brague, does not emerge in the unfolding of history. Instead,
he repeatedly emphasizes the choices that have been made
and in so doing, suggests that choice remains. Brague adopts
an historical method in order to free us from the straitjacket
of historical thinking. By exposing holes in the standard secularization narrative, he challenges popular biases about the
Middle Ages, biases that he thinks dangerously conceal the

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Christian foundations of liberal-democratic institutions and

fuel nave hopes about the modernization of Islam. Above
all, however, The Law of God conveys the message that even
today we are free to follow Paul in our orientation to law.
notes
1. Herg, Tintin in America (New York 1979), 44.
2. See, for example, page 6: We would have no right to force on Judaism or Islamlet alone the religions of the ancient world or the Far
Easta problematic that is by definition foreign to them. Emphasis added.
3. Compare 1 Cor. 11:316 and Quran 24:31, 33:59.
4. Alexis de Tocqueville, Democracy in America, Harvey C. Mansfield
and Delba Winthrop, tr. (Chicago 2000), 241.