The Revanche of Obligation

It is increasingly common to see a new kind of academic/trade press hybrid, whose central theme is to proclaim the centrality of obligations alongside rights. What is especially notable is that the authors of these books are generally liberal in political orientation (and I mean this primarily in the non-partisan sense). The reasons for the proliferation of this type of book are complex, as are, I think, the many difficulties that attend these proposals, precisely from within the general perspective that they tend to operate. But the general trend in offering accounts of the importance of obligation, of what binds the polity and its people, of what constitutes community and is necessary for its sustenance–all of these I think are interesting and important developments.

Here is a new book by Richard Haass, the former diplomat and government official in several administrations, very much in this line: The Bill of Obligations: The Ten Habits of Good Citizens (Penguin Random House), out later this month. Note especially Haass’s emphasis on “habits.” The centrality of habits, customs, and…well, traditions, in creating a sense of mutual political obligation goes back well before the creation of the American Bill of Rights.

The United States faces dangerous threats from Russia, China, North Korea, Iran, terrorists, climate change, and future pandemics. The greatest peril to the country, however, comes not from abroad but from within, from none other than ourselves. The question facing us is whether we are prepared to do what is necessary to save our democracy.

The Bill of Obligations is a bold call for change. In these pages, New York Times bestselling author Richard Haass argues that the very idea of citizenship must be revised and expanded. The Bill of Rights is at the center of our Constitution, yet our most intractable conflicts often emerge from contrasting views as to what our rights ought to be. As former Supreme Court Justice Stephen Breyer pointed out, “Many of our cases, the most difficult ones, are not about right versus wrong. They are about right versus right.” The lesson is clear: rights alone cannot provide the basis for a functioning, much less flourishing, democracy.

But there is a cure: to place obligations on the same footing as rights. The ten obligations that Haass introduces here are essential for healing our divisions and safeguarding the country’s future. These obligations reenvision what it means to be an American citizen. They are not a burden but rather commitments that we make to fellow citizens and to the government to uphold democracy and counter the growing apathy, anger, selfishness, division, disinformation, and violence that threaten us all. Through an expert blend of civics, history, and political analysis, this book illuminates how Americans can rediscover and recover the attitudes and behaviors that have contributed so much to this country’s success over the centuries.

As Richard Haass argues, “We get the government and the country we deserve. Getting the one we need, however, is up to us.” The Bill of Obligations gives citizens across the political spectrum a plan of action to achieve it.

Merry Christmas!

Merry Christmas to our readers! For the occasion, here’s a little something from the beginning of T.S. Eliot’s “Animula” (little soul), about the life of wonder of a child.

‘Issues from the hand of God, the simple soul’
To a flat world of changing lights and noise,
To light, dark, dry or damp, chilly or warm;
Moving between the legs of tables and of chairs,
Rising or falling, grasping at kisses and toys,
Advancing boldly, sudden to take alarm,
Retreating to the corner of arm and knee,
Eager to be reassured, taking pleasure
In the fragrant brilliance of the Christmas tree,
Pleasure in the wind, the sunlight and the sea;
Studies the sunlit pattern on the floor
And running stags around a silver tray;
Confounds the actual and the fanciful,
Content with playing-cards and kings and queens,
What the fairies do and what the servants say.

De Regno and the Establishment

St. Thomas Aquinas’s “De Regno” (one of the “other” works in addition to the Summa) is often translated, “On Kingship,” and at other times, “On Government.” The former is somewhat incomplete because it sounds as if the treatise is about monarchical arrangements alone. It is, of course, true that Aquinas defends monarchy in De Regno (the treatise was written to advise the King of Cyprus), but he does so within a broader exploration of the nature of political governance and the more general problem of tyrannical government (to include tyranny by the many, and not only by the one). “On Government” might be acceptable if “government” is taken to mean “politics” in the broadest sense as the “common thing” or fundamental commitments of the community.

Maybe the most accurate translation would be something like, “On the Political Establishment,” just in the way that our own Constitution talks about “establishments” in the First Amendment when it proscribes establishments “of religion.” One might wonder just which sort of establishments are permitted, or even encouraged, under such an arrangement. But back to Aquinas: the more expressly theological features of De Regno also incorporate a view of church-state relations that one might call mutually supportive or, more controversially, integrated, blending Christian and classical themes and arguments (as is usual for Aquinas). And there is much of interest as respects what we call “civil religion” and its dangers in De Regno.

Here is a relatively new book emphasizing the church-state issues in this important work: The Christian Structure of Politics: On the De Regno of Thomas Aquinas (Catholic University of America Press), by William McCormick, SJ (with a new paperback out next spring).

The Christian Structure of Politics, the first full-length monograph on Thomas Aquinas’s De Regno in decades, offers an authoritative interpretation of De Regno as a contribution to our understanding of Aquinas’s politics, particularly on the relationship between Church and State. William McCormick argues that Aquinas takes up a via media between Augustine and Aristotle in De Regno, invoking human nature to ground politics as rational, but also Christian principles to limit politics because of both sin and the supernatural end of man beyond politics. Where others have seen disjoined sections on the best regime, tyranny, and the reward of the king, McCormick identifies a dialogical structure to the text – one not unlike the disputed question format – whereby Aquinas both tempers expectations for the best government and offers a spiritual diagnosis of tyranny, culminating in a sharp critique of civil religion and political theology.

McCormick draws upon historical research on Aquinas’ context, especially that of Anthony Black, Cary Nederman and Francis Oakley, from which he develops three themes: the medieval preponderance of kingship and royal ideology; the relationship between Church and State; and the intersection of Latin Christianity and Greco-Roman antiquity. While age-old concerns, recent research in these areas has allowed us to move beyond simplistic platitudes.

For scholars of political theory and the history of political thought, De Regno will prove fascinating for the interplay of Aristotelian and Augustinian elements, undercutting the conventional wisdom that Aquinas was simply an Aristotelian. De Regno also includes an extended treatment of civil religion, one of Aquinas’ most historically-oriented discussions of politics.

Church as Foundation for State

For the second time in the last few weeks, I’ve come across a new book that argues that the Catholic Church was an important source of the foundational commitments and political structures of the contemporary European nation-state. The thesis is in some ways familiar from authoritative treatments by Berman in his “Law and Revolution,” but in others it is in considerable tension with a specific conception, still popular in some circles today, of church-state separation. This book, which looks quite interesting (soliciting Christmas gifts…), is Sacred Foundations: The Religious and Medieval Roots of the European State (Princeton UP), by Anna M. Grzymala-Busse.

Sacred Foundations argues that the medieval church was a fundamental force in European state formation. Existing accounts focus on early modern warfare or contracts between the rulers and the ruled. In contrast, this major study shows that the Catholic Church both competed with medieval monarchs and provided critical templates for governing institutions, the rule of law, and parliaments.

The Catholic Church was the most powerful, wealthiest, and best-organized political actor in the Middle Ages. Starting in the eleventh century, the papacy fought for the autonomy of the church, challenging European rulers and then claiming authority over people, territory, and monarchs alike. Anna Grzymała-Busse demonstrates how the church shaped distinct aspects of the European state. Conflicts with the papacy fragmented territorial authority in Europe for centuries to come, propagating urban autonomy and ideas of sovereignty. Thanks to its organizational advantages and human capital, the church also developed the institutional precedents adopted by rulers across Europe—from chanceries and taxation to courts and councils. Church innovations made possible both the rule of law and parliamentary representation.

Bringing to light a wealth of historical evidence about papal conflict, excommunications, and ecclesiastical institutions, Sacred Foundations reveals how the challenge and example of powerful religious authorities gave rise to secular state institutions and galvanized state capacity.

“Mysterizing Religion”

A draft of a short paper for a recent symposium I participated in at Notre Dame Law School. Here’s the abstract:

A mystery of faith is a truth of religion that escapes human understanding. The mysteries of religion are not truths that human beings happen not to know, or truths that they could know with sufficient study and application, but instead truths that they cannot know in the nature of things. Religious mysteries tend to designate the unfathomable matters of religion, those that the merely human mind cannot grasp.

In this short paper, I suggest that “mysterizing” religion may change the stakes in some of the most controversial conflicts in law and religion. To mysterize (not a neologism, but an archaism) is to cultivate mystery about a subject, in the sense described above—to press the view that a certain subject or phenomenon is not merely unknown, but unknowable by human beings. That is what I propose to do for religion in American law, and what may well alter the landscape of the conflicts between advocates of religious liberty and the forces opposing it. Fortunately, I have had some help. The mysterization of religion seems already to be well under way in American constitutional law. It is a central feature of the Supreme Court’s current conception of religion.

The specific context I consider concerns the question whether the government may make public funds available to private religious schools—either directly or through mechanisms of independent, private choice—on condition that the schools accept and implement nondiscrimination rules regarding the sexual identity or conduct of their students and faculty. The mysterization of religion probably alters the legal landscape by rendering the claim that conditions concerning the admission or hiring of LGBTQ persons interfere with religious free exercise stronger than it otherwise would be. And the argument for mysterization itself derives strength from the Supreme Court’s own conception of religion as ineffable, unintelligible, and unevaluable, as well as from the Court’s recent ministerial exception cases.

I conclude by briefly reflecting on what the mysterization of religion may mean more generally for law and religion. It is not all good news for religion. In fact, upon closer inspection, it turns out that mystery in traditional religions, conceptualized as a partial, incomplete, or imperfect apprehension of the transcendent, is quite different than mystery in the contemporary legal understanding of religion as psychological, interior, personal unfathomability. Almost its opposite.

Protestant Traditionalism?

It is a kind of commonplace that Protestantism is anti-traditionalist in orientation, preferring a view in which unmediated, personal relationships with God and scripture are what matter, while Catholicism is traditionalist, emphasizing the accretion of authorities that mediate the connection between religious source and the believer. This is a story often told in relation to America’s own famed Protestant founding to suggest something about the distinctiveness of American religiosity.

But not so fast, says a new book that questions key features of the usual story, The Old Faith in a New Nation: American Protestants and the Christian Past (Oxford), by Paul J. Gutacker.

Conventional wisdom holds that tradition and history meant little to nineteenth-century American Protestants, who relied on common sense and “the Bible alone.” The Old Faith in a New Nation challenges this portrayal by recovering evangelical engagement with the Christian past. Even when they appeared to be most scornful toward tradition, most optimistic and forward-looking, and most confident in their grasp of the Bible, evangelicals found themselves returning, time and again, to Christian history. They studied religious historiography, reinterpreted the history of the church, and argued over its implications for the present. Between the Revolution and the Civil War, American Protestants were deeply interested in the meaning of the Christian past.

Paul J. Gutacker draws from hundreds of print sources-sermons, books, speeches, legal arguments, political petitions, and more-to show how ordinary educated Americans remembered and used Christian history. While claiming to rely on the Bible alone, antebellum Protestants frequently turned to the Christian past on questions of import: how should the government relate to religion? Could Catholic immigrants become true Americans? What opportunities and rights should be available to women? To African Americans? Protestants across denominations answered these questions not only with the Bible but also with history. By recovering the ways in which American evangelicals remembered and used Christian history, The Old Faith in a New Nation shows how religious memory shaped the nation and interrogates the meaning of “biblicism.”

The Religion of Unpolluted Human Ignorance (or, You’re Perfect Just the Way You Are)

I recently read, for the first time, Jean-Jacques Rousseau’s “Discourse on the Arts and Sciences,” regularly referred to as the “First Discourse” to distinguish it from the more famous, second “Discourse on the Origins and the Foundations of Inequality Among Mankind.” The First Discourse is a short thing, not more than 20 pages or so, but extraordinary in its biting observations on the positive wickedness and pretension of hubristic aspiration to scientific and humanistic knowledge and improvement. “That opaque veil with which Wisdom cloaked her actions should have warned us that we were not destined for a vain quest for knowledge. Is there a single one of her lessons from which we have profited or which we have neglected with impunity? Let all nations once and for all realize that nature wanted to protect us from knowledge, just as a mother snatches a dangerous weapon from the hands of her child. Let them know that all the secrets she hides from us are so many ills from which she protects us and that the very difficulty they encounter in searching for knowledge is not the least of her kindnesses. Men are perverse; but they would be far worse if they had had the misfortune to be born learned.”

The First Discourse ought to be read by everyone who is part of the knowledge class, as a bit of cold water on the pretensions of the ostensibly learned. But quite apart from its incisive criticisms (and there are quite a few), the First Discourse contains several themes that run through Rousseau’s broader body of work–especially the natural, unadulterated, internal goodness of humanity, the depravity and corrupting influence of social conditions and culture, and the importance of resisting this cultural pressure in being true to what or who one “really” is, uncorrupted by social expectations, knowledge, learning, and so on. As it happens, these are themes that are also crucial for understanding the present moment in American social and cultural life.

A new book, Rousseau’s God: Theology, Religion, and the Natural Goodness of Man (University of Chicago Press), by John T. Scott, develops many of these themes across Rousseau’s writing.

John T. Scott offers a comprehensive interpretation of Rousseau’s theological and religious thought, both in its own right and in relation to Rousseau’s broader oeuvre. In chapters focused on different key writings, Scott reveals recurrent themes in Rousseau’s views on the subject and traces their evolution over time. He shows that two concepts—truth and utility—are integral to Rousseau’s writings on religion. Doing so helps to explain some of Rousseau’s disagreements with his contemporaries: their different views on religion and theology stem from different understandings of human nature and the proper role of science in human life. Rousseau emphasizes not just what is true, but also what is useful—psychologically, morally, and politically—for human beings. Comprehensive and nuanced, Rousseau’s God is vital to understanding key categories of Rousseau’s thought.

Aquinas on Aristotle (Jerusalem on Athens?)

One of the most enjoyable parts (for me, at least!) of my “Jurisprudence, Justice, and Politics” course last year was reading selections of Aristotle and St. Thomas with my students, and observing both continuities and crucial differences in their accounts of law, virtue, justice, the good life, and so many others. These similarities and contrasts go very much to the heart of the “law and religion” project that our Center has as its mission. Here is what looks like a wonderful and deeply erudite new book by the late Fr. Leo Elders, an eminent scholar of Aquinas, on these very subjects: Reading Aristotle With Thomas Aquinas: His Commentaries on Aristotle’s Major Works (CUA Press), released early next year.

Reading Aristotle with Thomas Aquinas: His Commentaries on Aristotle’s Major Works offers an original and decisive work for the understanding of the thought of Thomas Aquinas. For decades his commentaries on the major works of Aristotle have been the subject of lively discussions. Are his commentaries faithful and reliable expositions of the Stagirite’s thought or do they contain Thomas’s own philosophy and are they read through the lens of Thomas’s own Christian faith and in doing so possibly distorting Aristotle?

In order to be able to provide clarity and offer a nuanced response to this question a careful study of all the relevant texts is needed. This is precisely what the author sets out do to in this work.

Each chapter is devoted to one of the twelve commentaries Thomas wrote on major works of Aristotle including both his massive and influential commentaries on the Metaphysics, Physics and Nicomachean Ethics as well as lesser known commentaries. Elders places Thomas’s commentary in its historical context, reviews the Greek, Arabic and Latin translation and reception of Aristotle’s text as well as contemporary interpretations thereof and presents the reader with a thorough presentation and analysis of the content of the commentary, drawing attention to all the places where Thomas intervenes and makes special observations. In this way the reader can study Aristotle’s treatises with Thomas as guide.

The conclusion reached is that Thomas’s commentaries are a masterful and faithful presentation of Aristotle’s thought and of that of Thomas himself. Thomas’s Christian faith does not falsify Aristotle’s text, but gives occasionally an outlook at what lies behind philosophical thought.

Panel on Traditionalism and Originalism at Georgetown Today

I’m down at Georgetown Law School today for a lunchtime presentation on “Dobbs and Bruen: History, Tradition, and Originalism,” hosted by the Georgetown Center for the Constitution. I’m looking forward to catching up with my old professors, Larry Solum and Randy Barnett, and to meeting and chatting with students about traditionalism and originalism at the Court.

Christianity’s Cultural Authority

In many of the accusations of “Christian nationalism” that one hears today, the true complaint seems to be that Christianity continues to wield an outsized, or, at least, an undesirably outsized (from the accuser’s point of view), political and (especially) cultural authority. Though one may debate the matter in today’s world, the accusation is, so far as it goes in this way, historically accurate. Christianity has, in fact, been the dominant religion of the Western political and cultural world. Indeed, some might even say that one may measure the success of any given religion, defined broadly, by the extent to which it can subsume the state and the culture into its rituals, practices, strictures, beliefs, and ways of life.

A new book traces this history of politico-cultural dominance in the early medieval period: Christendom: The Triumph of a Religion, AD 300-1300 (Penguin Press), by Peter Heather.

In the fourth century AD, a new faith exploded out of Palestine. Overwhelming the paganism of Rome, and converting the Emperor Constantine in the process, it resoundingly defeated a host of other rivals. Almost a thousand years later, all of Europe was controlled by Christian rulers, and the religion, ingrained within culture and society, exercised a monolithic hold over its population. But, as Peter Heather shows in this compelling history, there was nothing inevitable about Christendom’s rise to Europe-wide dominance.

In exploring how the Christian religion became such a defining feature of the European landscape, and how a small sect of isolated congregations was transformed into a mass movement centrally directed from Rome, Heather shows how Christendom constantly battled against both so-called ‘heresies’ and other forms of belief. From the crisis that followed the collapse of the Roman Empire, which left the religion teetering on the edge of extinction, to the astonishing revolution in which the Papacy emerged as the head of a vast international corporation, Heather traces Christendom’s chameleon-like capacity for self-reinvention and willingness to mobilize well-directed force.

Christendom’s achievement was not, or not only, to define official Christianity, but – from its scholars and its lawyers, to its provincial officials and missionaries in far-flung corners of the continent – to transform it into an institution that wielded effective religious authority across nearly all of the disparate peoples of medieval Europe. This is its extraordinary story.