Our friend Davey Henreckson, formerly of Notre Dame and now of Princeton, has posed some very helpful questions for us at his site, in response to our essay, occasioned by the polemics of Mr. Matthew Tuininga, on the ecclesiastical politics of John Calvin. His questions are excerpted here, and replies follow.
But first, two terms might need explanation for the general reader.
The first is “voluntarism”, by which Mr Henreckson means the idea that the will of the sovereign is what makes a positive law a law, rather than the inherent intelligibility of its “rightness” or evident accord with natural law. Obviously, the question of authority and coercion lies at the heart of this. Critics of voluntarism say that it makes conformity to law a matter simply of heteronomy driven by fear of punishment, rather than virtue. There is usually a historical narrative which serves as a backdrop for this critique, especially among the followers of Milbank; it is extremely questionable.
The second is “right order theory,” which indicates the view that justice is an order of the civic-social whole, and that rights are thus derived from that order, rather than being inherent in individuals. This is in some measure a false dichotomy, since most right order theorists are not totalitarians and certainly do not deny the dignity of the human being. What they say is that rights are conventional, though what rights are founded on might be or is natural, and so have a strong sense of the human distinction between nature and second nature and what that means for politics.
Mr Henreckson asks:
…what was the impact when these later Reformed thinkers incorporated elements of Hobbes and Bodin’s theories of absolute sovereignty?
It’s important to note that although Grotius was broadly speaking in the Reformed tradition (on the edges, being of Remonstrant sympathies), and Althusius was definitely in the mainstream orthodox Reformed tradition, Pufendorf and Thomasius were both irenic Lutherans.
The reception of Hobbes and Bodin was very complicated. I myself subscribe the view that Hobbes was a Protestant Christian, though an especially radical and peculiar one, whose political teaching has the doctrines of total depravity and God’s Providence as cofactors, and hinges on a radical version of the classical distinction between the visible and invisible realms. Hobbes needs to be read as a whole, which means, reading the rarely-read third book of his Leviathan as carefully as students usually read the first two.
Hobbes’ theory of absolute sovereignty has to do with the unity of common civic life; it is not genuinely absolute, since in Book Three he says that the Christian subject of a non-Christian sovereign cannot obey the sovereign’s command if it violates the law of God or nature. Further, the original delegation in the act of representation always remains as a memory and possibility, and thus Hobbes’ absolute personal sovereign can be seen as a representative unity of popular sovereignty, which cannot have any actual unity and power unless it so consolidate itself, and does not exist as a co-sovereign of the same sort with the personal sovereign when it does so.
But to the question: the pertinent part of the effect of the reception was to establish the Christian sovereign as guarantor and adjudicator of temporal peace and order, to limit the realm of politics to the temporal, and thus to politically relativize all theological claims and controversies which did not touch what Hobbes considers the one core doctrine: “that Jesus is the Christ,” what Cromwell called “the heart of the matter.” None of this is to justify Hobbes’ eccentricities, errors, or overstatements, but rather to help illuminate what he meant to his careful readers among the later Protestant jurists.
And similar things can be said of Bodin, though he is much less an exegete than Hobbes. Although not himself a Protestant, he argues in the same magistratical line as Marsilius, Dante, Wyclif, and Ockham, whose politics were anticipatory of the Reformers’ own. Bodin’s particular contribution is likely to be found in his theorizing the sovereignty of the sovereign as not simply confirming, but also transcending, the highly articulated social taxis of subordination and obligation, and, in that double office, being able thus to act as a sponsor of social mobility and creative shakeup of the old feudal order of estates. This was historically the motive and effect of royal absolutism, and accorded well with the specifically Calvinist idea of personal vocation and personal freedom though Bodin himself was certainly not Reformed.
Additionally, Mr Henreckson writes:
Second, scholars like Loughlin and Ian Hunter have pointed out that the voluntarism of later theorists (especially Pufendorf and Thomasius) allowed modern public law to stand independent of natural law. In other words, voluntarism undermined the old Platonic and Aristotelian forms of right-order theory. I suspect that John Witte (and perhaps Matt?) might be fine with this development.
The voluntarism of Pufendorf and Thomasius doesn’t allow public law to stand independent of natural law, a critique which one finds in Dr Rommen, for instance. One gets the impression from Dr Rommen and certain others that Pufendorf and Thomasius taught some sort of unqualified legal positivism, and separated law from moral truth. But their position rather marks a return to certain insights of St Thomas and the classical natural law tradition. There is more than one kind of natural law doctrine.
Here’s why. Christian Aristotelians taught that natural law is the ideal gestalt pattern of human actuality, in a temporal mode, and thus the measure of will and practical reason. St Thomas taught, correctly, that practical reason is not speculative (propositional) reason but simply dealing with things to be done. He said that practical reason is more intuitive and prudential, and intimately involved with the will. He also taught, correctly, that due to sin, that human ideality is difficult to clearly intuit, especially in puzzling practical situations, and thus that the natural law, although a real rule, is in many respects obscure. And obscure not only from sin; obscure also because as ethical norm it is more intuitive than discursive.
The mainstream Papacy taught that by a special charism granting infallible authority in matters of faith and morals, the Pope in the exercise of his teaching office is exempt from this common human condition, and had a true intuition of natural law and a true ability to infallibly formulate its dicta propositionally. This view owed a great deal to the Shiite imamology, which taught that the Imam is sinless, infallible, and thus able to be a perfect heir of prophethood, which for Muslims (both Sunni and Shia) has a politically architectonic office.
St Thomas had taught that natural law is not law in the same sense as civic law. For the latter to be valid, it had to be intelligibly promulgated by a lawful authority; whereas the former is a universal norm. But it is very important to note that the universal norm of natural law is not, for St Thomas, a latent or innate positive law, as if it were a kind of inner traffic code written on the conscience. Its relation to God, the source of law, gives it something of that character in a way, but still does not constitute it as a set of communicated orders in the sense that either human or divine positive law is.
For the Papacy, and for the two Protestant attempts to return to its model (Disciplinarians, and Lutheran clericalists), natural law is a kind of inner positive law, to which the clergy, either by political or personal charism, have a more direct access than has the prudence of either citizen or magistrate.
Thus, although it can seem that Pufendorf and Thomasius break from the connection between natural and positive law, in fact they do not. They broke from the speculativizing and positivizing misconception of natural law sponsored by the Papacy and its imitators, and reasserted its intuitive character, denying that natural law is basically textlike and simply explicated by positive law via a privileged reader of the text (Pope, or regenerate theologian). They affirmed natural law and the sociality of man, but said that personal prudence requires civic law for its formation especially in youth, and that the unity of commonwealth demands an order of public law promulgated by the sovereign. This law cannot violate the basic natural norms, but these norms are indeed ideal and basic, and great scope is given to prudential application of them.
Let’s return to Dr Rommen. After cataloguing what he takes to be the “absurdities” of the Protestant jurists, for not recognizing natural law as a real (quasi-positive) law above all law, he then makes a remarkable admission:
Through its acid criticism of society, it certainly served to dissolve the traditional and rigid forms of feudal and guild law in the reforming legislation of enlightened despots like Frederick the Great of Prussia and Joseph II of Austria. The causal connection is verified in the authors of these reforms, who lived and taught wholly under the spell of this new natural law. Nor did it only smash these forms to pieces in a revolutionary manner, as the Jacobins inspired by Rousseau did in France. It is also preserved from ultimate extinction a goodly part of the of the old national legal heritage by investing much of the latter with the splendor of natural justice. For example, Thomasius rejected the free testamentary disposition of Roman law and opposed to it, as a requirement of natural law, the German system of succession according to blood. Moreover, in conjunction with the Enlightenment, it again did away with with the belief in demons, which since the close of the Middle Ages had been working havoc in the sphere of law (withcraft delusion); and thus it deprived torture of all justification arising from belief in demons, from the supposed “possession” of the criminal. Finally it upheld, in Germany by means of reform, in France through revolution, human and civil rights against a personal absolutism of princes that towered over everything; in this way it once more helped the idea of the constitutional state on to victory.
Let’s review this. Dr Rommen, who, by a petitio principii, has accused the Protestant jurists of separating law from morality, and positive law from natural law, is honest enough to admit that Protestant jurisprudence bore the constitutional State to victorious settlement, helped abolish witchmania and judicial torture, and, even though often royal-absolutist and voluntarist, also managed to ensure that absolutism was defined in service of human and civil rights and the commonly recognized common good.
Surely he can’t just leave Protestant jurists on this chair of honor, however. And he does not, in fact. He says immediately after, “Yet we should not overlook that it likewise vindicated to the point of chicanery the police-state of enlightened despotism along with the tutelage of its citizens.“
Well that’s no good. If the early modern Protestant jurists, for all their contributions, were theorists of a meddling bureaucracy whose primary aim is disciplinary panopticon, then perhaps this cancels out their good. But the honesty of Dr Rommen gets the better of him. He then admits:
On the other hand, the separation of morality and law, and the assignment of law alone to the state and of morality to the individual, aided materially in the suppression of the police-state. The state, it was held, is not to concern itself with the morality of its citizens, which is an internal matter. Among the consequences of this view in the moralizing century was not only the victory of civil toleration in matters of religious belief, but also the victory of the liberal constitutional state over the totalitarian educational state, whereof Maria Theresa’s morals commissions still afforded evidence.
The Catholic Maria Theresa of Austria, that is. What Dr Rommen is calling “separation of morality and law” is simply the Protestant sin/crime distinction. None of the Protestant jurists taught a real separation of good and right. What they taught was the distinction between sin and crime, and the original two-kingdoms distinction between spiritual and temporal. They never denied the foundation of positive law in ideal human form. What they denied was that that the natural law was an unpromulgated but enforceable quasi-positive law above all positive law, whose seer and enforcer was a politically unaccountable agent- Pope or supposedly regenerated theologian- with trump powers over any earthly sovereignty (including domestic, by the way- not simply political. The Popes claimed the power to dissolve marriages by fiat).
There are different understandings of Platonic and Aristotelian right-order doctrine. Although the scope of these brief replies does not permit extensive consideration, suffice it to say that although Pufendorf and Thomasius certainly did not regard themselves as Aristotelians, they are perhaps more faithful to the Christian Aristotelian tradition in certain key respects than many modern natural law theorists are.
Mr Henreckson ends with a question about contemporary philosophical debates, The neo-Calvinist Nicholas Wolterstorff also targets right-order theories of justice and rights (although he doesn’t buy the philosophical voluntarism). But where do you stand on this point? What difference does voluntarism make?
There is no way to treat this question adequately here, but I will outline some introductory considerations. Wolterstorff’s critique of what he takes to be the common features of right order theory is partially founded on the Biblical view that all men are in the image of God, and from this, he derives inherent rights grounded on inherent dignity. The problem is that he is a philosophical theologian saying so, and he can’t count on anything like universal assent and voluntary conformity to his propositions.
The difference (relative) voluntarism makes has to do with establishment, promulgation and enforcement. It is not surprising that Wolterstorff, although very illuminating with regard to distributive and commutative justice, is weak on two points: retributive justice and constitutional foundation. These rights aren’t going to enforce themselves. The older jurists are clearer-minded about the necessity of a decisive establishing and enforcing act for rights to be guaranteed; call it “voluntarism,” if you will, but it could less jargonistically be called just taking care of business. Voluntarism also, by limiting the range of divine law to what can actually be demonstrated positively of God’s will from the sacred oracles, radically limits the possibility of unaccountable claims of “divine law” meant to trump real law and real order.
 Bonnie Kent has set the record straight, or straighter in any case; see her Virtues of the Will: The Transformation of Ethics in the Late Thirteenth Century, CUA Press, 1995.
 A term which Dr Jordan Ballor is eager to see in currency as a replacement for the possibly confusing “magisterial”, and used here as a small gesture of friendly support for his lexical campaign.
 In The Natural Law: a Study in Legal and Social History and Philosophy, Liberty Fund, 1998.
 Classic expositions of the idea are to be found in al Farabi’s Tahsil as sa’ada, and ibn Khaldun’s Muqaddimah. For the Papacy’s reception of the same, see Sten Gagnér, “Boniface VIII and Avicenna,” Proceedings of the Second International Congress of Medieval Canon Law, Stephan Kuttner and J. Joseph Ryan , eds., S. Congregatio de seminariis et studiorum universitatibus, Vatican City, 1965.
 Rommen, 94.
 And in this, returned to the saner royal mind of the early middle ages, which was generally opposed to superstition, and saw that witchcraft trials would simply reinforce remnant pagan conceptions of the world by granting their presuppositions.
 op. cit., 95.
 ibid., 95.
 Dr Rommen then says, “For, supposing that the Church as a free community pre-eminently concerned with faith and morals is lacking or is not recognized, the identification of morality and law leads readily to a state which no longer respects a sphere of personal moral responsibility or a personal nature and goal which transcends the state” (95). But surely Maria Theresa recognized that “free community” (read: politically sovereign ministerium), and recognized her role as obedient servant of the “supernatural power” (again, read: ministerium). Dr Rommen cannot have it both ways. Protestantism demonstrably deconstructed the moralizing police State by a natural logic, whereas Papalism defined the State as primarily a police state, as Figgis says- defined it as the obedient enforcer, “secular arm,” of the dictates of the clerical super-politicians, whose word is to be credited as “natural law” and “law of God” even where it has no Biblical foundation. Because to demand such foundation, to demand express written will of God, would be “voluntarism” or “Protestantism.”