Faith and Law

How Religious Traditions from Calvinism to Islam View American Law

Robert F. Cochran, Jr.

• Publisher: NYU Press
• Year: 2007
• ISBN:
  9780814716984
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The relationship between religion and the law is a hot-button topic in America, with the courts, Congress, journalists, and others engaging in animated debates on what influence, if any, the former should have on the latter. Many of these discussions are dominated by the legal perspective, which views religion as a threat to the law; it is rare to hear how various religions in America view American law, even though most religions have distinct views on law.

In Faith and Law, legal scholars from sixteen different religious traditions contend that religious discourse has an important function in the making, practice, and adjudication of American law, not least because our laws rest upon a framework of religious values. The book includes faiths that have traditionally had an impact on American law, as well as new immigrant faiths that are likely to have a growing influence. Each contributor describes how his or her tradition views law and addresses one legal issue from that perspective. Topics include abortion, gay rights, euthanasia, immigrant rights, and blasphemy and free speech.

Part I
The Augustinian Framework
The City of God and the City of Man

Our essays begin with Augustine. He set the framework within which discussions of religion and the state in the West have taken place since his time. Whether his name is invoked or not, he has had great influence on American thought about law since the earliest days of the New England colonies. Historian Perry Miller argues that his influence on Puritan thought in New England was even greater than that of John Calvin.¹ Augustine is second only to Thomas Aquinas in his influence on Catholic views of law.

Augustine viewed the believer as a member of two cities, the City of God and the City of Man.² His discussion of the tensions between the two cities provides meat for his successors, whether they advocate that Christians rule the City of Man, keep to themselves in the City of God, or attempt to hold the two roles in tension. Among the early Americans, as well as among Americans today, there were believers who went in each of these directions. In our collection, Elizabeth Mensch explores the tensions within Augustine’s writings about criminal punishment.

NOTES

1. Perry Miller, “The Augustinean Strain of Piety,” in Perry Miller, The New England Mind: The Seventeenth Century (Cambridge, MA: Belknap Press, 1939), 4.

2. Augustine, City of God, Book XI (Grand Rapids, MI: Eerdmans, 2002).

Chapter 1
Augustine

AUGUSTINE AND LAW

Elizabeth Mensch

The Augustinian perspective on justice raises paradoxes deeply rooted in Augustine’s description of self, society, and world. Augustinian reality is darkly tragic, inevitably riddled with signs of human sin; yet it is also, simultaneously, a world shot through with surprising signs of abundant grace. For the Augustinian, this radical intermixture of sin and grace marks every aspect of human life.

Augustine points to an unrelenting darkness of indescribable depth. “Whose eloquence,” he asks, could “number and weigh the woes of this mortal condition?” (CG XIX 4).¹ Deformity and disease sap strength from mind and body; treachery and cruelty may lurk beneath the tranquil surface of family life; friends may be enemies, and enemies friends. This gnawing uncertainty which undercuts trust “is a kind of ignorance similar to madness,” Augustine comments (CG XIX 8). Even true affection brings anxiety and loss, since disasters and death stalk those we love. Similarly, the external peace of the city is fragile and deceptive: legal trials both signify and intensify internal divisions, implicitly representing, in muted form, the ever-present threat of civil war. Huge empires achieve broad unity, as with the Pax Romana of Augustine’s day, but their supposed universality rests on a foundation of suffering: “how many great wars, what slaughter of men, what outpouring of human blood have been necessary to bring this about?” (CG XIX 7).

In the midst of this darkness, however, signs of God’s love and peace abound, often in unlikely places: “What tigress does not purr softly over her cubs and lay her fierceness aside while she caresses them? What kite, solitary as he is while he hovers over his prey, does not take a mate, make a nest, help to hatch the eggs, rear the chicks, and preserve with the mother of his family, as it were, a domestic society which is as peaceful as he can make it?” Even within the grim physicality of death, inside a decaying carcass itself, insects busily eat the remains and “all those little bodies . . . serve their little spirits in the peace that preserves their lives,” while the carcass, “particle by particle,” unites with the elements and “passes away into this peace” (CG XIX 12).

Although Augustine’s thought thus defies linear description, this most irreducibly Christian of the major political theorists has exerted an unshakable influence on centuries of legal thought, secular as well as Christian. That legacy, however, eludes categories. For example, Augustine helped to lay the foundation for a highly institutionalized and politicized Catholic authority, but his writing helped to inspire Luther’s challenge to that authority, and also subsequent experiments in church/state separation. His analysis of knowledge and language ranks Augustine among postmodernists in epistemological sophistication, yet he found in the human mind tools for understanding even divine mysteries like the Trinity. Although he seemed to counsel submission to all government, including tyranny, some have found in his work hope for human freedom, and for defiantly new beginnings even in the face of numbing totalitarianism.

Beneath these contradictory directions lies a unifying problem, the “Augustinian dilemma.” That dilemma has two sides: first is the inescapable need for legal authority in an imperfect world where sin is always pressing human reality; second is the equally inescapable Christian illegitimacy of every exercise of domination over others, an illegitimacy that deflates any human claim to be doing real “justice.” For Augustine, the exercise of legal force, never untainted by the evil of coercion, is at best only a tragic necessity, a sad reminder of sin; yet the peace it brings, though tainted and imperfect, is nevertheless a real good, an instance of the harmony willed by God, and therefore a sign of grace.

Therefore, scholars after Augustine who attempted to construct an unassailable ethical foundation for the legitimacy of legal force (from Thomas Aquinas in the Middle Ages to John Rawls in recent times) were writing in implicit response to the Augustinian critique of law. Conversely, utopians who proposed the perfectibility of society without law (from millennialist Christian sects of the Middle Ages to secular Marxists) were in effect trying to counter the Augustinian insistence on sin’s inevitable power and the need to contain it. Indeed, our own constitution can be read as Madison’s Augustinian concession to political reality: the natural Eden of the New World had produced, not new Adams, but divisive, selfish factions that, Madison concluded, could not be transformed into a model of perfect political virtue—only channeled and balanced within an artificial framework of legalized institutions.

Augustine thus stands as a brooding presence in the history of legal thought. He posed dilemmas that remain at the core of any definition of “justice,” yet he also found hope even (and precisely) in our inability to find certain answers. Augustine wrote during the waning of the Roman Empire, and legend has it that this linguistic skeptic wrote more than any one person could ever read. Before his conversion, the restless quest for both philosophic truth and success in Roman public life had led, by his own admission, to inflated pride, but also to mounting discontent. With sadness he had given up a woman he loved, the mother of his son, because as a “concubine” (a semilegalized but inferior status) she could not be a respectable wife; yet he could not renounce his search for sexual pleasure. Only conversion to his mother’s Christianity, a faith he had previously rejected as insufficiently philosophic, brought the promise of peace, of finally coming to “rest” in God (Conf. 1, 5).

After his conversion, as bishop in North Africa of the established Church, Augustine exercised quasi-judicial as well as religious authority. From the Romans he inherited a model of justice drawn in its general assumptions from the Greek celebration of reason and strikingly similar to modern accounts. As recounted by Augustine, that model presupposed, in the admired words of Cicero, the true commonwealth as “a group of rational beings bound together by a common rule of right and a community of interests.” Within the commonwealth, reasoned justice meant giving to each “his or her due” (CG XIX 22).

That Roman definition foreshadowed modern social compact theories of justice: people unite to protect their interests, joining a polity pledged to protect those interests according to a principle of “right.” John Locke drew on ancient models when he described the protection of our rights to life, liberty, and property as the just aim of government—an aim that with Jefferson became protection of “life, liberty, and the pursuit of happiness.” Such rights-based social contract models are, arguably, implicitly retributivist: criminal punishment is what the criminal is “due”—even owed—by the state, as a matter of right.² Violating the rights of another person means violating the norms of one’s own reason, which require equal respect for the autonomy of the other; the criminal is legitimately punished for, in effect, violating the “right” of each party to the crime.

For the Romans, however, the self was not quite an originally “private,” pre-political individual who joined a “public” state but whose rights remained essentially private, as we tend to conceptualize the relationship. Instead, the relation was one of microcosm and macrocosm: the citizen was an inner version of the polity, and politics defined the self. By Greco-Roman tradition, within each well-ordered citizen reason governed disruptive passions, like lust or rage, which threatened the calm discipline of virtue. Similarly, within the well-ordered household the citizen-father imposed the reasoned calm of male discipline on the potential irrationality of wife, children, slaves, and animals. So too, within the polity virtuous authority meant the imposition of reason and structure on the otherwise diffuse, threatening masses.³ Discipline of self and family was thus reciprocally related to legality within the polity. In every case the boundary of reason protected an inner order against an ever-present presupposed threat, just as the internal order of Rome itself required territorial defense against the hoards at the outposts.

Augustine argued by reference to the micro/macrocosm model but also dramatically disrupted its terms and thereby undercut the Ciceronian definition of justice. To state his analysis in broad terms, Augustine challenged the Roman model of the self, with its focus on reason’s struggle against the passions. After intense self-examination, as recounted in the Confessions, he concluded that the problem of sin lay not in the passions but in the internal divisions of the will, where the prideful preference for self over God dislocated the once perfect alignment of Adam’s will with God’s. This original dislocation, he insisted, reproduced itself in divisions that marked every aspect of inner and outer life, including the exercise of a never unsullied “reason.”

Reaching outward from the self, Augustine argued that the same dislocations replicated themselves in inevitable divisions within family and polity. Human societies began with Cain’s jealous slaughter of Abel, and Rome was founded when Romulus murderously seized power from his twin brother. Mindful of the power of those myths, Augustine described politics as a history of conflict, a history obfuscated by bland Ciceronean accounts of reason and common interest. He refused, too, to be beguiled (as were many Revolution-era Americans) by legends of Rome’s golden age of robust republicanism, as if the problem of political legitimacy could be ascribed to modern corruptions of earlier idyllic political virtue; and he resisted terms that implied false unity:

For the Romans always lived . . . surrounded by the disasters of war and the shedding of blood which, whether that of fellow citizens or enemies was human nonetheless. The joy of such men may be compared to the fragile splendor of glass: they are horribly afraid lest it be suddenly shattered. . . . [Therefore let] us not allow ourselves to be swayed by idle bombast. Let us not allow the edge of our attention to be dulled by the splendid names of things when we hear of “peoples,” “kingdoms,” and “provinces.” (CG IV 4)

If the problem of self and polity lay in sin as an original dislocation of the will, the solution did not lie in summoning up yet more heroic reasoned virtue, to do more violent battle within self or polity. It lay instead only in the healing power of grace—in the experience of a supra-abundant love of God and neighbor which alone brought both inner peace and outer harmony. Once capable of such healing, however, the self became a citizen, not of this earthly city, with all its boundaries, defenses, and divisions, but of the City of God. This heavenly City, this mystical unity that could never be institutionalized on earth, was characterized by a continual reciprocity of love and therefore by true peace and real “justice.” Its foundation lay not in the exercise of power and “reasoned” legal violence but in the self-sacrificial powerlessness and boundless (unjustified, unreasonable) forgiving love of Christ.

Acceptance of that love, through grace, began the Christian’s release from inner division, but it also made the Christian an alien to the legal forms of earthly justice—estranged from its harsh relations of power and coercion. In Augustine’s famous formulation, drawn from John 17, the pilgrim on earth was “in” but not “of” the world. Nevertheless, to be “in” the world meant being dependent on its outward, legalized forms—needing “the peace of Babylon” even while being “delivered from Babylon by faith” (CG XIX 26).

Therefore, the peace offered by the polity would never replicate the peace of the City of God. As an artificial human construction, designed to perpetuate power, the polity was marked by inevitable self-contradiction: for purposes of governance it summoned up and depended on the same prideful lust for power (as in the politician’s ambition for office and influence) that, unchecked, threatened precisely the peace that the polity claimed to preserve. Nevertheless, in the face of unrelenting human sin—even the pilgrim was not completely healed—that artificial peace was preferable to the violent chaos that would follow its dissolution. Thus, in contrast to many early Christian pacifists, Augustine allowed that the city on earth, whatever its form, could claim the loyalty of Christians, even in warfare. The concession was striking because Augustine abhorred war, not only for its bloodshed but also because it did violence to the sensibilities even of victorious rulers, who perversely long to discover the wickedness of others in order to justify combat, for they must “have someone to hate or fear in order to have someone to conquer” (CG IV 16).

Augustine’s formulation of two cities, in contrast to the one all-defining polity of Roman jurisprudence, set in motion the famous dialectical relationship between the City of God and the earthly city, a dialectic that dominated political thought for centuries, as theorists struggled to defend the legitimacy of cities on earth, which could never quite be the City of God. That dialectic also meant that the Christian stood in paradoxical relation to existing legal forms—bound even by love of neighbor to serve the earthly peace that law brought but acutely aware that its legitimacy was provisional, contingent, and inevitably rooted in sin.

The same dialectic meant that the church played an ambiguous role. Clearly the church was “in” the earthly city and, even, “of” it: in a world characterized by an intermixture of sin and grace, no institutional church could claim to be the City of God. Indeed, Augustine denounced (even labeled heretical) the divisive goal to achieve complete ecclesiastical purity: since nobody is sinless, Augustine insisted, only God could separate the wheat from the tares; attempting such separations on earth represented prideful failure of Christian charity. Moreover, as an earthly institution, the church could never be unsullied by politics. Augustine himself summoned, albeit reluctantly, political authority to help quash influential, disruptive outbursts of heresy; partly because of Augustine himself, therefore, Christian doctrine could never claim autonomy from coercive power relations. Nevertheless, equally clearly, the peace that the church offered, when it held out the model of Christ and the means of salvation, was the antithesis of the peace of the earthly city—as antithetical as the contrast between the humility of Christ’s self-emptying renunciation of power (the founding moment of Christian freedom) and Romulus’s proud and fratricidal seizure of power (the founding moment of Roman justice).

A broad description of his analysis cannot capture the complexity of Augustine’s commentary; it does not even quite explain his rejection of Cicero. A fuller (although still superficial) explanation requires that we move back to the Augustinian description of the self, which was the starting point for his analysis of family and polity, even as politics would then move back to implicate the self. Specifically, Augustine’s understanding of sin and redemption determined his understanding of justice and led to his conclusion that the law of the polity could never achieve real justice.

Augustine is well known for citing sexuality as a sign of original sin. “Sign” did not mean “cause,” however. The troubling force of sexuality was not “passion” overcoming “reason” but was simply an outer, visible sign of deeper inner dislocations and divisions. The capricious nature of sexuality intrigued Augustine because its pesky, persistent insistence on having a will of its own in defiance of the self’s own highest yearnings replicated the original human choice to disobey God. Such perversity was a sign of a will at every level deeply divided even against itself. As Augustine described his own yearning to serve God, “it was I myself who willed it and I myself who did not will it. It was I myself. . . . Therefore, I was at war within myself, and I was laid waste by myself” (Conf. 8, 10).

Memory, for Augustine, was at least as mysterious as sexuality. Existing in time, the self knew its own identity as self only by its own memory, yet memory was as variable and unstable as sexuality, as prone to frustrating lapses and obsessive intrusions. Much remained hidden in the mind’s murky, cavernous depths, beyond the willed capacity for retrieval. We were thus always hidden from ourselves, yet aware of ourselves at the same time. No less than modern philosophers and scientists, Augustine knew that understanding the mind was a prodigious challenge: “Lord, I truly labor at this task, and I labor upon myself. I have become for myself a soil hard to work and demanding much sweat. . . . Consider: the power of my own memory is not understood by me, and yet apart from it I cannot even name myself” (Conf. 10, 8). However elusive and changeable, memory seemed to Augustine a prison because there was no “self” to be located apart from it. Whereas some scholars, including Christian Gnostics, had described the materiality of the body as a prison within which the mind or soul was trapped, seeking escape to a more ethereal existence, for Augustine the mind was the self’s own prison.

This confinement was intensified by the limits of language, which Augustine found an obvious sign of a fallen world. Babel was a metaphor for the way language, a social construct, separated cultures from one another. As Augustine commented, a person could more readily hold a “conversation with his dog” than with one speaking another language (CG XIX 7). Language separated us not only from other cultures but from the external world, from one another, and from our own experience—none of which could be known as they were but only as we described them to ourselves in words. Trapped within the forms of language, we were encased in layers of separation, with access, through memory, of only a mediated, conventionalized account of our own lives.

Moving outward from self, A...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• Acknowledgments
• Introduction
• Part I The Augustinian Framework: The City of God and the City of Man
• Part II Reformation Faiths
• Part III Home-Grown American Faiths
• Part IV Catholicism
• Part V Judaism
• Part VI New Immigrant Faiths
• Contributors
• Index