Augustine and Modern Law

James Bernard Murphy, Richard O. Brooks, RichardO. Brooks

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351574983
• Edition: 1
• Topic: History
• Subtopic: World History
• Index: History

St. Augustine and Roman law are the two bridges from Athens and Jerusalem to the world of modern law. Augustine's almost eerily modern political realism was based upon his deep appreciation of human evil, arising from his insights into the human personality, the product of his reflections on his own life and the history of his times. These insights have traveled well through the ages and are mirrored in the pages of Aquinas, Luther and Calvin, Reinhold Niebuhr, and Hannah Arendt. The articles in this volume describe the life and world of Augustine and the ways in which he conceived both justice and law. They also discuss the little recognized Augustinian contributions to the field of modern hermeneutics - the discipline which informs the art of legal interpretation. Finally, they include Augustine's valuable discussion of church/state relations, the law of just wars, and proper role and limits of coercion, and the procreative dimensions of marriage. The volume also includes an extremely useful, definitive bibliography of Augustine and the law, and will leave readers with an increased appreciation of the contributions which Augustine has made to the history of jurisprudence. No one can read Augustine and these articles on his view of the law without taking away a new view of the law itself.

Part I
Augustine: His Life and His World

[1]
The Life and Religion of Saint Augustine

Whitney J. Oates

IMPLICIT in the immense variety of Saint Augustine’s writings is an organic wholeness of attitude. This simultaneity of his thinking, or if you choose, the “all-togetherness,” accounts for many of his strengths as well as his weaknesses. The first essential for one who embarks upon a study of this great man is an awareness of the total unity in the vast multiplicity of his works. It is no wonder that the critical interpreter, who must proceed from aspect to aspect, who must compartmentalize his analysis, finds himself face to face with a task of grave complexity. He cannot, for example, satisfactorily expound “the philosophy” of Saint Augustine, for if he does, he may be forced to accept a definition of philosophy as that which proceeds only from reason, and such a definition would be utterly unacceptable to Saint Augustine himself.¹ Philosophy, theology, religion, in his thought, are all deeply interfused, their functional relations so clearly felt, that for him it is futile to talk of any one of these apart from the context of the others. For him, data derived from reason are only half alive unless they are viewed in the perspective of faith and revelation, and the converse likewise is true.

This prime characteristic of Augustinian thought has exposed it to the attack of precise philosophical criticism which can point up with relative ease places where the rational defense may be weak. The same characteristic also makes the individual treatises difficult to read, for the main line of an argument may be blurred or obscured by the powerful associative memory of Saint Augustine. He may choose at any moment to develop a point tangential to the major question at issue, and can do so with complete justification and without irrelevance if, as he believes, all things are so closely interrelated. But as a consequence the effect of logical articulation is often lost. On the other hand, it would be the height of absurdity to deny logical power to Saint Augustine. It is revealed clearly in many individual passages, such as his proof for the existence of God in Book II of the treatise On Free Will, as well as in the over-arching logic of his great works, such as The City of God. A synoptic view of this masterwork discloses an architectonic skill which few can rival in the Western tradition.

Saint Augustine’s thought cannot strictly be called a “system.” It is rather a world view or a “universe view,” one which comprehends God and all of reality from the highest order down to its most insignificant details in their manifold and complex inter-connections. In contrast, there have been many philosophers who have constructed “systems” from the time of the earliest Greeks on down through the nineteenth century, from the predecessors of Socrates through Hegel and his followers. Epicurus, for example, by blending the atomism of Democritus with an ethic of pleasure, forged an almost water-tight rationalistic materialism, which is systematic in the highest degree. In fact, so carefully wrought, so “closed” is his system, that his followers, and of course notably Lucretius, had only to invoke the ipse dixit of the master’s authority to settle any debatable issue.

Aristotle also provides an illustration of the systematic thinker with whom Saint Augustine may be contrasted. The “master of them that know” had supreme confidence in reason plus a superb analytical insight into the nature of logical relations, as well as an insatiable eagerness to absorb, organize and understand all that the world of sense experience could offer. From these elements he erected a philosophical structure, logically coherent and so all-inclusive that, as everyone knows, it dominated the intellectual life of even more than the Western world for centuries. But Aristotelianism too, generally speaking, is a “closed” system, and, as such, it has tended to beget continuators and commentators. In a sense, Aristotle set for himself a task upon which he labored until it was completed. Similarly, Saint Thomas Aquinas undertook his enterprise of forging a Christian metaphysic, and to all intents and purposes, he finished his project in such a way that, in the opinion of many Catholic thinkers, it will never be necessary to attempt it again. It, too, can be called a “closed” system. For the most part the Thomist annotators have ramified and interpreted the thought of their master, since they have not felt the need to take their start from him and embark on new voyages of philosophical discovery.

In distinction to these creators of “closed” systems, there have been philosophers whose thought has been “open.” Let it be understood, as a general definition, that an “open” system is one which comprehends within it all aspects of reality, one which recognizes the principle that “life runs beyond logic,” and above all, admits the fact that human speculation on ultimate questions is always in process, and cannot in any final sense ever be completed. It is “germinal” and at the same time peculiarly vulnerable to strict rational attack. Plato perhaps is the most notable example of this second type. Any attentive reader of the Dialogues can observe that Plato wished more than anything else to prevent his thought from congealing. The very dialogue form or the principles underlying his dialectic convey his intense desire to keep his philosophical inquiry alive and not permit it to crystallize into a series of verbal formulae. This attitude is perhaps most clearly evident in the closing section of the Phaedrus, where Socrates insists that only the actual conversations of men, only the real contact of mind with mind, genuinely lives, while anything that is written partakes inevitably of a certain kind of death. Plato knows the terrible finality of words.

If it be fair to call Plato the creator of an “open system,” it is interesting to observe the kind of influence he has tended to exert. Whereas the “closed system” stimulates the continuator and commentator, the “open system,” with its wholeness of attitude or way of looking at things, tempts either those who undertake to complete the system—i.e., to change it from an “open” to a “closed system”—or those who are inspired by the general attitude and hence are led on to creative philosophical speculation of their own. Plotinus and the Neo-Platonists were convinced that they were completing Platonism, and yet this so-called logical conclusion is a “closed system,” marked by a dogmatism and an abandonment of radical dualism with which Plato himself would never have concurred. The other type of influence can be seen not only in philosophers from the Stoics on down through the centuries to such men as Alfred North Whitehead, but also in the poets and artists whose creative imaginations have been stirred by the Platonic vision.

Saint Augustine must be numbered among those whose thought is “open.” Surely many an Augustinian has attempted the task of completion. Almost without exception the effort has only produced a strange variant of the original, and their labors bear the same relation to Saint Augustine as the Neo-Platonists do to Plato. In fact, since in the course of time many and often conflicting Augustinianisms have appeared, depending upon the particular aspect of the original view which has been selected for emphasis, Saint Augustine has now and again been partially “exiled” by some elements in the Catholic Church. Actually he has never been an “official” philosopher of the Church in the sense that Saint Thomas is. Indeed, it may be impossible that an “open system” can ever validly achieve such an official role. Yet the dynamic vitality of Saint Augustine’s whole and “open” view, and its potential as a source of inspiration, has constituted one of the Church’s greatest assets throughout its history. As for the conflicts which are. possible outgrowths of any “open system,” M. Etienne Gilson has succinctly suggested the solution: “The difficulties which at the present time beset Augustinianism are not an ill for which we need to find remedies, for Saint Augustine is not affected by any ill; all that is needed is to return from the Augustinianism of the Augustinians to that of Saint Augustine himself.”²

The foregoing observations which contrast the “open” with the “closed system” are offered as generalizations to which exceptions may well be taken. Yet the basic distinction appears sound and should be particularly helpful in dealing with a figure like Saint Augustine. Furthermore, in contemplating the broad sweep of Western philosophy or the development of the Christian religion, it is not too difficult to observe how the “open” and the “closed system” complement each other. To designate a system as “closed” does not mean to derogate from its value or importance. Actually each has its distinctive philosophical and religious function; each fulfills a different need. In the Roman Catholic Church, no one can take the place of Saint Thomas, but as M. Gilson has remarked, “But to be Christian qua philosophy a philosophy must be Augustinian or nothing… [Saint Augustine is] at the very heart of Christian thought, side by side with Saint Thomas Aquinas, who may have differed from him, but has never left him.”³

Christianity by its very nature has needed and needs now a spokesman of Saint Augustine’s quality. What must be stressed in Christianity is its insistence that “all things are together.” If reason runs riot, or if emotionalism gets out of hand, Christianity in its essence cries out—or at least should, to restore the balance. Early twentieth-century Protestantism illustrates a serious departure from the central insights of the religion envisioned by Saint Augustine. Somehow, under the influence of a naive optimism and trapped in the contradiction that God could be removed from Christianity without undue loss, this deviation in the name of Protestantism propounded a Christian social ethics which liquidated its spiritual inheritance. Faced with the world cataclysm of our time it merely evaporated.

Reinhold Niebuhr, with a profound sense of the comprehensiveness of Christianity, has reacted vigorously against this modern version of Protestantism. His whole analysis sees both the human predicament and the Christian answers in terms of a series of closely interconnected paradoxes, and his development of these paradoxes reveals at every step that he recognizes fundamentally the “all-togetherness” of the Christian position. In fact, it would not be too much to say that his recognition of this basic quality of Christianity has given him his stature as a leading Protestant theologian. Yet another imbalance in its turn tends to vitiate Niebuhr’s position. Planted squarely as he is in the prophetic tradition, he has concentrated too exclusively on the fallen state of man, or to put it somewhat facetiously, has been so busy rehabilitating sin as a fact of man’s nature that other and equally important aspects of Christianity suffer from under-emphasis.

Even these two illustrations, however random they may appear, should suffice to point out what Saint Augustine’s balanced view can contribute to twentieth-century Christianity. But note, this is not to suggest a mere repetition or a slavish parroting of the Augustinian position. Rather, since it is an “open system,” the suggestion is that Christian thinkers expose themselves to the stimulus of its balance, absorb the spirit of its comprehensiveness, and be encouraged thereby to reinterpret afresh the inclusive unity of Christianity. That our time is ready for such a revivification of the Augustinian attitude is indicated by the recent widespread and renewed interest in Augustinian studies. Why is it that now both Protestant and Catholic alike claim Saint Augustine as their own? Can it be too much to hope that somehow, via increasing familiarity with his insights into the nature of Christianity, men can come more fully to a sense of the abiding unity which underlies sectarian difference?

Saint Augustine’s monumental figure appears at that point in history when finally all the diverse forces of the ancient world had come together into a cultural amalgam which was destined to disintegrate, or at least to be transmuted, almost at...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Acknowledgements
• Series Preface
• Introduction
• Selected Bibliography
• PART I AUGUSTINE: HIS LIFE AND HIS WORLD
• PART II TWO CITIES: JUSTICE IN THE EARLY AND DIVINE COMMUNITY
• PART III AUGUSTINE’S PHILOSOPHY OF POLITICAL AUTHORITY AND LAW
• PART IV SELECTED FUNDAMENTAL PRINCIPLES OF JURISPRUDENCE AND POLITICAL THEORY
• PART V APPLICATIONS OF AUGUSTINE’S THOUGHT TO SELECTED LEGAL TOPIC
• Name Index