2022 Introduction
This is the last of the redux series where I'm republishing material from the defunct Spectre-Online website. This was a somewhat ambitious essay from autumn 2015 which attempts to argue a heterodox position on the influence of theology for modern jurisprudence and political categories more generally. As a piece of political-theology it's heavily influenced by my reading of Harold J Berman's two volume Law and Revolution, as well Giorgio Agamben's work on so-called economic -theology found in his Kingdom and the Glory.
There's a degree of naiveté shown here in my ignorance of the "dark side" of the process whereby the Medieval Catholic Church became a centralised transnational bureaucratic power, and how the birth of scholasticism was integral to that process. An excellent counterpart - or counterhistory even - can be found in R.I. Moore's The War on Heresy, which documents - from the ground up - the role that nascent Catholic legal science had in building the case for the Albigensian crusade.
Scholasticism gave a fixed and uncomprehendingly bureaucratic zeal to the clerics charged with prosecuting the war on heresy in the Languedoc and wider region of what is now South Western France. All too often the spectre of a "Manichean", or otherwise dualist Gnostic heresy was the convenient shorthand to gloss local disputes or reform activity which ran against the grain of the Church's attempt to centralise and systematise the faith. The invention of the heretic, with an almost standardised set of beliefs and posing an existential threat to the unity of the faith, emerged in the Paris schools of the twelfth century, coeval to the birth of scholastic rationality and the newly confident Church's drive to reform the secular world. Ranged alongside a French monarchy looking for excuses for expansion, the end result was a military campaign, unprecedented in its brutality, which historians now frequently refer to as genocide.
The second obvious naiveté in this text stems from it being written prior to the populist wave of 2016. While the displacement of the Church's claims to universality onto modern transnational institutions like the EU, IMF, World Bank, etc, is plain to see, my lament for the loss of a counterbalance to contest the Globalist (for that is what I'm talking about avant la lettre) pretentions of international finance proved to be premature. I read in those paragraphs a desire for a new movement, not a new Church, and certainly not what we got; a ragtag association of conspiracy theorists, 4Chan shit-posters, Boris Johnson and Donald Trump. I'm being unkind, and the past seven years (only seven!) cannot be reduced to any one tectonic shift around worn-out political categories (least of all Left and Right). That's why the study of political-theology is so fruitful in destabilising our preconceived notions of how social and political life are put together. Now, the so-called Culture War really does look like the return of the wars of religion or the prelude to a crusade. As it was in the Middle Ages the battle lines are frequently being drawn between the rooted, parochial folk inhabiting the material world, and that assertive class of transnational administrator whose reified conception of how the world works depends for its stability on the ever present threat of the heretic.
2015 text
"God is himself law; therefore law is dear to him" Sachsenspiegel (Saxon Law) of Eike von Repgau, Early 13th Century
Of all the grand narratives supposedly put to the sword during the era of post-modernity secularisation seems peculiarly resistant. While we are familiar with critiques of Western progress, cultural superiority and ethics, the narrative that would have us believe we in the West live in predominantly irreligious societies, and thus have passed through some process by the name of secularisation remains common wisdom. This idea is implicit in the way we see ourselves and how we frame our dealings with other cultures, and has become increasing acute in the post 9/11 world where the complexity of the global situation and the West's part in the multiplying fields of conflict are reduced to simple binary oppositions. David Cameron provided a paradigm example of this kind of simplification in a recent speech on the ideology of Islamic State:
"It (ISIS) says religious doctrine trumps the rule of law and Caliphate trumps nation state and it justifies violence in asserting itself and achieving its aims. The question is: How do people arrive at this worldview?” (1)
One might critique this simplification by replacing the words religious doctrine with economic necessity or globalisation and Caliphate with American/Western hegemony. But this reversal - while having some truth to it - would gloss over what I think is the more important opposition Cameron sets up, which is the one between religious doctrine and the Rule of Law. Here the Prime Minister is drawing directly on a common assumption of secularisation, and from a particularly Protestant context, which draws a fundamental separation between human and divine law. This is one of the key assumptions of secularisation theory, that it involves purifying the legislative and governmental functions of the State from any kind of religious influence. That we in the UK live in such a state despite bishops sitting in the house of lords, an established church, and a sovereign who is also head of that church, is taken for granted.
But what precisely secularisation consists in, and where and when did it occur, is still a vexed question, the answers to which very often fall back on the sort of grand narrative type of historiography that we are meant to have left behind. The answers may vary but inevitably they include many of the most recognisable events in Western historiography; the renaissance, the reformation, the scientific revolution, the enlightenment, the French revolution, the industrial revolution, etc. Here we are confronted with a process supposedly ending in the present and yet seemingly without an origin. I would argue that this thing we call secularisation is a far more complex idea than it is generally taken to be and that an on-going critique of our assumptions regarding religion and the West is vital to understanding the current predicament we face in politics and culture. With such a vast topic a detailed treatment isn't feasible here. Instead it might be worth taking a historical perspective on the supposedly common sense opposition between religion and the Rule of Law.
A Note on the "New Atheists"
As is well known the question over religion's place in society and international affairs has been constantly raised over the last fifteen years or so, given impetus by 9/11 and the war on terror. There has been no more prominent voice during this period than the so called New Atheists with Richard Dawkins and the late Christopher Hitchens being their most visible public figures. Their "debates" and public actions have more often than not focussed on opposing religion to their own brand of secular, empirical and scientific world view. As such they tend to spend most of their time debunking bible stories and criticising the irrational belief in higher beings rather than enquiring into the sociological and philosophical intersection between religion and modernity. They assume a break, so to speak, between the two and so their actions display an almost incredulous attitude towards those who haven't got the message yet.
This analytic/empirical attachment to the God question has skewed public discourse on religion to the detriment of other approaches which might yield a less partisan, less triumphantly antagonistic form of enquiry. One obvious source of that antagonism is the presupposed association of secularism with rational government and democracy, and thus their opponents with religious dogma, fanaticism and authoritarianism. Cameron's quote above fits squarely within this form of thought. To get beyond this antagonistic staging of debate around religion it is vital to turn away from the limited questioning around the existence of God and instead enquire into the history and operation of religion as a form of social ordering centred around the sacred. To do this broadens the enquiry to take account of the intersections between the history of philosophy, science, and most critically, the development and formation of Western legal and governmental systems. In doing this however, in particular to put the role of science into question, is a step too far for the New Atheists and their analytic empirical commitments.
To borrow a distinction from Ian Paisley, the activity of the New Atheists in public is in fact not to debate but to dispute religion. Their aim is to displace it from public discourse and to install their own version of secular empirical rationality as "established". Thus they hope to remove the need to debate it in the future. In this sense it is broadly correct to describe the kind of militant atheism practiced by Dawkins et al as a kind of secular religion, construed as a form of totalised social ordering and fundamental set of principles beyond question.
Western legal rationality and the Canon Law: The Papal Revolution
To begin to critique the accepted narrative on secularisation we need to go further back than the well known events listed above. Back further than the reformation and renaissance, back to the very heart of Medieval Europe. At the end of the eleventh century Europe experienced what some scholars have described as the first of the great revolutions; the so called Gregorian or Papal revolution. To summarise, it involved a declaration of independence by the Papacy from the control of Kings, lords and the Emperor within the multitude of Germanic proto states that made up the bulk of central and Western Europe at that time. But the infamous Dictatus papae of Pope Gregory VII was more than just a declaration of independence. Among its 27 statements it asserted for the first time the unity of the Church as a transnational body with the Pope as its supreme head; that the Pope may appoint or transfer bishops as he sees fit, and only he may depose them; and of particular importance was the statement that only the Pope can approve laws for the church. This was a new and powerful declaration of the dualism of secular (meaning temporal or earthly) and ecclesiastical powers and jurisdictions which came to be known as the Two Swords theory.
In the period after the disintegration of the Western Roman state and prior to the eleventh century these powers tended to be tied together in the concept of sacred Kingship where the ruler was not simply an enforcer of the peace but the spiritual head of the community; God's vicar entitled to dispose of ecclesiastics as he saw fit and intervene in church policy and governance within his respective territory. The freedom of the church from secular control and the declaration of the Pope's supremacy over spiritual matters began the process of eroding this notion of Kingship. The King was to be a layman whose role increasingly came to be seen as keeper of the peace and law-maker within the jurisdiction of temporal affairs only. However, as is well known, the Dictatus papae also made the radical claim that the Pope could himself depose Kings and Emperors, in accordance with the theory the ecclesiastical sword was ultimately superior to the temporal sword. This shouldn't obscure the fact however that the first tentative moves towards the separation of Church and State were made by the church itself, and it had to fight hard to assert this independence with the so-called Investiture controversy and the martyrdom of Thomas Becket being two significant flashpoints.
But the Church's declaration of political separation was only one part of the revolutionary changes that took place in the eleventh and twelfth centuries. More important for the emergence of the idea of the Rule of Law was the concurrent development and systemisation of the Canon law inspired by the newly rediscovered Roman Law books of Justinian. Scholars such as those at the recently founded law school at Bologna began examining the legal doctrines of the church in light of Justinian's texts which they took to be a complete and ideal legal system, a ratio scripta endowed with near biblical authority. To do this they employed the method of analysis and synthesis developed by Saint Anselm, Peter Abelard and others known to us as Scholasticism. Since they assumed that the edicts and responsa of the Roman Law were true and just they could in effect be treated as first principles. But since both the Roman Law, and the writings and Canons of the Church contained gaps and contradictions, a process of dialectical reasoning had to be employed to smooth out the different legal norms contained within; abstracting, classifying and synthesizing conflicts.
Legal historian Harold J Berman has argued that this movement represented not only the emergence of modern rationalised legal science but of the modern scientific method more generally. The glossators of Roman law and the Canon lawyers worked by formulating hypotheses that could serve as a basis for ordering phenomena (in this case legal phenomena) in the world of time that could yield probabilities and predictions rather than certitudes and necessities. Their approach moved dialectically by establishing general legal principles and then relating them back to particulars in predictions (2). Certainly this wasn't the sort of exact empirical science favoured by Dawkins but it did have an experimental side insofar as the developing system was tested in practice in the ecclesiastical courts and in the conflict between overlapping legal jurisdictions throughout Europe. The apogee of this work came in the mid twelfth century with Gratian's decretum, a collection of church Canons which formed the basis of Canon law until the 20th century. It is thus not an exaggeration to describe the Canon law that emerged from the Papal revolution as the first recognisably Modern legal system complete with a professional body of lawyers and a student body to study and develop it. But more than this it coincided with the independence of the church from secular control and its rise as a form of transnational state in its own right. This new state with its officials and sovereign (Pope) was to be a state based on law, a Rechtsstaat which in practice placed considerable limitation on the power of the Pope up to the point of theorising conditions where he should be deposed.
As the legal system of the church developed so too did its legal practices, which in turn influenced the legal practices of the hitherto unsystematic and arbitrary forms prevalent in the Germanic kingdoms. Trial by compurgation (oath helping), ordeal or battle were rejected and superseded by the investigative or inquisitorial procedure which emphasised the establishment of the facts. To be sure the Catholic inquisition would later come to be associated with the worst of the Medieval church, but in the twelfth century these new procedures constituted a dramatic shift towards a more rational, logical and more distinctively modern jurisprudence where the direct intervention of God was ruled out. The Canonists and Glossators of the Roman law took up an agonistic relationship to the secular laws of the various Germanic and Frankish kingdoms, both supporting and challenging them, giving rise to many basic legal concepts we still carry with us today. Indeed the principles of reason and conscience were proclaimed by the ecclesiastical jurists as weapons against the formalism and magic of Germanic law (3). This relationship hinged upon the freedom of the Church and the fact that the boundaries between temporal and ecclesiastical power which inaugurated the Papal revolution were constantly being contested.
What we tend to think of as the religiosity of the Medieval Canon law and its conflict with secular state affairs was in fact always already a process of secularisation. The Glossators and Canonists endowed the Roman Corpus Juris, as it was known, with a sacred quality comparable to the Bible itself. They took it in effect as a total system developed over centuries that not only reflected the best that mankind's reason could produce, but also represented a common law of all peoples under God. This universalism and the Church's newly acquired mission to reform the secular world was a defining shift in the minds of Medieval people in comparison to previous centuries where the earthly realm was seen as little more but one of chaos and decay; a world sliding away into dust before the coming of The Kingdom of God which the Church was to patiently await. The period of the Papal revolution however saw a massive shift in Medieval European society. The invasions from the North, South and East of Europe finally came to an end, populations rose and thousands of new towns were founded along with increases in trade and artisanal production. Amid these changes the church declared its unity and independence and its mission to reform the secular world; a mission in which Law came to play a defining role. This shift in legal ideology might be summarised as the move from a chaotic irredeemable law of an irredeemable world to a systematic legal rationality that could aim to approximate divine justice itself and in doing so reform that world.
From the Two Swords to the global oikonomia
The above summary is obviously brief and simplifies considerably what was a complex and multi-facetted era in European history. It should however suffice to demonstrate that Cameron's assertion of the opposition between religion and the Rule of Law is wholly misplaced and in fact the Medieval church was instrumental in desacralizing Kingship and bringing to a closure the era of Germanic folk-law which reigned in Europe after the fall of the Roman state. We owe to the Papal revolution of the eleventh and twelve centuries and to the philosophers, theologians and jurists of that time the modern notion of a rational, logical, law governed world, one capable of embodying an ideal of Justice and ultimately the Rule of Law itself.
It should be noted that subsequently during the Reformation, and English and French revolutions it was the jurisdiction of the ecclesiastical courts that was primarily attacked and only secondarily, over time, the content or procedure of the law itself. In England after Henry VIII broke from Rome the authority of the Pope was taken up by the monarch who not only maintained but even extended the jurisdiction of the ecclesiastical courts. It wasn't until the 19th century that the jurisdiction of church courts in England was thoroughly curtailed and the secular legal system took up what Michel Foucault has called its "pastoral power". In the modern era it is the secular powers that have assumed the task of judging and shaping the soul of Man. It is only in the 20th century that the idea developed initially by the Canon lawyers, that the law should represent something universal for all peoples, something that embodies higher values beyond mere contingent political interest, has faded from view. More to the point the church's role in championing such a position and challenging the secular power to meet that obligation has almost entirely evaporated (although Pope Francis seems at times to hint at a revival of this tradition). It is Berman's thesis that this eclipse of universality constitutes the great crisis in law today. Without a common consciousness that the law should embody universal values about ends and purposes of society people lose respect for it and more often it becomes what Karl Marx and Max Weber believed it was; merely an instrument for the prevailing power.
I am more of the view that what has occurred over the last century or so is not the eclipse of universality but rather its displacement into a new field, namely economy. The IMF, World Bank, and other transnational financial institutions have issued their own Bull of unam sanctam and hold sway over the governments of nation states to a degree the Pope could never had imagined. For us unlike the peoples of Medieval Europe there is no Two Swords theory that would have the secular and spiritual authority vying for position, criticising and constraining each other's power. Nor does the universal law of the market admit of any other values aside from profit and competitive positioning. The nature and actuality of justice is no-longer contested as a political concern and is increasingly identified under neoliberal economisation with market outcomes. The American political philosopher Wendy Brown's recent analysis of the "revolution of neoliberalism" claims that under such conditions what disappears is precisely this capacity to limit, this platform for critique, and this source of radical democratic inspiration (4). Since the transnational apparatus for global finance holds both swords they can influence the laws and economies of sovereign states (need I mention Greece, Chile, South Korea) while judging the soul of human life according to the logic of homo economicus.
It is the radical thesis of Italian philosopher Giorgio Agamben that the paradigm for modern globalised economy was gestated in the Western church's theories of the divine economy and Providential government of creation (5). Just as the Medieval church came to see Law as a way of reforming the world and directing moral conduct towards a state mirroring that of the divine Kingdom, the modern era uses it - and governance more generally - as a way of reforming national economies and directing individual economic conduct towards market norms. The supposedly natural and immutable form of marketized world governance is however a Providence divested of its messianic fulfilment, and as such is a potentially eternal government of the world without the possibility of an eschaton.
This dark thesis suggests a controversial way of looking at secularisation. According to this view secularisation is not a concept operating within historical processes but rather a "signature" which continually marks history, showing where the forms, modes and underlying metaphysical assumptions have shifted from the field of religion to those of politics and economics. While this is by no means uncontested ground we should perhaps be open to the possibility that our contemporary era is more marked by the ideas and signatures of theology than we are led to believe.
References.
1 - Cameron warns of 'quietly condoning' IS ideology (BBC News, 19 June 2015, http://www.bbc.co.uk/news/uk-33192306)
2 - Berman,Harold J - Law and Revolution: The Formation of the Western Legal Tradition ( Harvard University Press, 1983) - pg151
3 - Berman,Harold J - Law and Revolution: The Formation of the Western Legal Tradition ( Harvard University Press, 1983) pg251
4 - Brown,Wendy - Undoing the Demos: Neoliberalism's Stealth Revolution (Zone books, 2015)
5 - Agamben, Giorgio - The Kingdom and the Glory (Stanford University Press, 2011)
