A - Sanctification and Secularization

1 Desanctification of Law and the Problem of Absolutes

Jeremy Waldron

I Introduction

Desanctification of law? – we never even knew it was holy! Sure, centuries or millennia ago, positive law was bound up with religion. Trial was by combat or ordeal, so that God could render a verdict. The boundaries of cities and private property were consecrated by religious processions. Treaties were deposited in temples so the deities could supervise their implementation.¹ Contracts were spoken of as sacred. Writs and processes sounded in liturgy and magic as much as in rational inquiry.² The sovereign conceived as the fount of justice was anointed “with the oil of gladness at the hands of priests and prophets.”³ A great philosopher writing thousands of years ago about the rule of law could say, “He who bids the law rule may be deemed to bid God and Reason alone rule, but he who bids man rule adds an element of the beast,” and expect to be understood.⁴ Certain laws were revered as untouchable by human rulers because they dwelt in justice with the gods: “their life is not of to-day or yesterday, but from all time, and no man knows when they were first put forth.”⁵ And the sanction of divine authority, not to mention the threat of divine punishment, was taken for granted as key to the viability of any legal system.

But that was then. A few relics of this sanctity remain – some incantations (“God save this honorable court”), oaths taken on Bibles still, bishops as legislators (in the United Kingdom), and chaplains at executions. But nothing that would warrant excitement or hysteria or even a hesitant lecture about “desanctification.”

The desanctification that I want to talk about in this chapter is not just the disentanglement of religion from law. It is also not just the separation of church and state, the sort of thing that prohibits the privileging of any particular religion, let alone establishment or dominionism.⁶ Nor is desanctification the sort of thing that is compromised just because law continues to respect the place of religion in people’s lives through principles of religious liberty, for example, and techniques of accommodation.⁷ All that is quite compatible with desanctification. Desanctification certainly doesn’t just mean pulling down tablets with the Ten Commandments inscribed on them from the walls of American courtrooms.

I am thinking of it instead as a process whereby certain kinds of meaning and value are drained from legal norms and institutions. It is a process described by the early twentieth-century sociologist Max Weber in his late writings about the rationalization of law and the general disenchantment of the world.⁸ I’ll say more about Weber in a moment, but in this context desanctification involves the withering away of a spirit of transcendent normativity, a spirit that has in the past sustained certain legal absolutes and encouraged (indeed, required) us to press the hardest questions we can about the justice of our legal arrangements, but which now seems to be at odds with the rational spirit of the age.

Understood in this way, desanctification is not necessarily about religion at all. True, the transcendent normativity that has withered away is something that might once upon a time have been associated naturally with religion. It was not inappropriate to use words like “sacred” to refer to it. But it need not be understood in formally religious terms – though, as we shall see, participants in law’s desanctification are still haunted by the specter of the divine. That’s what frightens them; that’s what they want to extirpate. (Some Weberian discussions even talk of “the disenchantment of religion” as well as the desanctification of law.)⁹

Anyway, religious or not, a dimension of transcendent normativity is supposed to have gone from law and from the evaluation of law. Blinking clear-eyed in the hard light of day, we can no longer apprehend certain kinds of deontic requirements that legal provisions used to embody or certain kinds of deontic principles that law used to respond to. This is what I would like to discuss.

II Max Weber

A body of practical reason can be desanctified as to its form or desanctified as to its content. Or both. I am going to begin with desanctification of the form of law – a process described by Max Weber in his late work, particularly in the second volume of his unwieldy and unfinished Economy and Society.¹⁰ As we shall see, Jürgen Habermas provides a useful gloss on Weber’s account, though Habermas also engages with it critically; he has his own agenda to pursue, which is to show that despite what Weber says, his (Habermas’s) moral method is still available for use in evaluating modern law.¹¹ I won’t say much about this rather self-serving critique, but since Habermas has a good understanding of what Weber meant, I shall from time to time draw on his words as a gloss on Weber’s.

In Economy and Society, Weber describes what he calls the rationalization and formalization of law, a process that develops alongside the growth of an increasingly complex economic system. Legal machinery is needed to resolve “increasingly complex conflicts of interests.”¹² Modern markets and large-scale capitalist industry require the commodification of almost all goods and the development of more and more complex instruments of exchange.

“[T]he calculability of the functioning of the coercive machinery” of government is the “technical prerequisite” of “development of a market economy,” says Weber.¹³ But that calculability comes at a cost. Law in the modern world has such complex tasks to perform and so many technical conceptions to relate to one another that it has to develop a conceptual apparatus of its own. Ordinary language categories will not do; nor will those that are made available in classic natural law theory. Law has to produce calculability but it cannot produce intuitive calculability. Instead, in order to guarantee its consistency and systematicity, events and transactions have to be characterized in law’s own terms, which are no longer intuitive categories. Intuitive understanding is lost, but there is a corresponding gain in deductive rigor.

So, for example, a legal description of a transaction or event together with a set of accompanying conditions will generate more or less deductively a legal description of consequences. But the transactions, events, conditions, and consequences have to be classified in the conceptual matrix of legal logic, which has been established precisely to make these inferences work. As Weber put it, “facts of life are juridically construed in order to make them fit the abstract propositions of law and in accordance with the maxim that nothing can exist in the realm of law unless it can be ‘conceived’ by the jurist in conformity with those ‘principles’ which are revealed to him by legal science.”¹⁴ The whole thing must constitute a formal system,¹⁵ involving what Habermas calls “the systematization of legal propositions, the coherence of legal doctrine, that is to say, the rationalization of law according to internal, purely formal criteria of analytic conceptual structure, deductive rigor, principled explanation and justification, and the like.”¹⁶

The result is technical law, increasingly distant from the comprehension of the layman – “continuous growth of the technical elements in the law and hence of its character as a specialist’s domain.”¹⁷ A legal specialist is no longer a specialist in the interplay of law and justice; instead he is someone who has gained the ability to manipulate and apply these specifically legal concepts but lost any inclination to associate with them intuitive or ordinary-language meaning or with the meanings we might find in ordinary moral expressions.

All of this is part and parcel of what Weber calls “the overall disenchantment of the world, a process of intellectualization and rationalization that has been at work in Western culture for thousands of years.”¹⁸ Our ability to control everything by means of technology and calculation seems to require that “the ultimate and most sublime values have withdrawn from public life. They have retreated either into the abstract realm of mystical life or into the fraternal feelings of personal relations between individuals.”¹⁹ Everything is detail; everything is means–end rationality. Ultimate values no longer frame any “big picture.” At any rate, they are no longer part of the lawyer’s public world. As Habermas glosses Weber’s view, “The disenchantment of the religious worldview and the decentration of world understanding are the presuppositions for a transformation of sacred legal concepts.”²⁰ Law no longer presents its norms and concepts for evaluation as moral principles. Instead it presents an interlocking array of technical elements for holistic evaluation in terms of the contribution made by the array to the efficient organization of market relations.

III Unevenness and Resistance

So far as legal developments are concerned, Habermas notes that, according to Weber, the process we have been describing “appears very unevenly in the legal developments of different nations [and] more pronouncedly in countries within a tradition of Roman law.”²¹ At the end of the nineteenth century, the rationalization of law is associated with codification and with law in Continental Europe. In Anglo-American law, by contrast, there was – certainly in Weber’s day – not so much codification; the Common Law and its methods (which Weber disparaged as “inductive case-to-case methodology” and “charismatic judging and law-finding”) continued to be dominant. There was less in the way of legal science, as Weber understood it.²² And yet capitalism flourished.²³

In Economy and Society, Weber also discussed various forms of push-back against this formalization of law where it did happen – pushback motivated by status concerns on the part of lawyers and judges who felt demeaned by the “mechanical jurisprudence” of law’s formalism.²⁴ But it wasn’t just the technicians who protested. The sentiments of some laymen also demanded a more intuitive (perhaps even moralized) body of law.²⁵ They thought law should have continued to have recourse to a “metapositive” objective natural law with an emphasis on ideas like justice and dignity.²⁶

But this was futile, according to Weber. “The reproduction of social life was … far too complex to be comprehended in the meager normative motifs of natural law.”²⁷ Once the process of rationalization was underway, “questions concerning the institutional embodiment of moral-practical rationality are not only shoved aside … : they now appear to be the source of irrationality,” at any rate “of motives that weaken the formal rationalism of law.”²⁸ According to Weber, “the role played in the development of the law by purely ‘emotional’ factors, such as the so-called ‘sense of justice’”²⁹ represented a “flight into the irrational.”³⁰

Even so, it wasn’t just moralists who pushed back in this way. The formal rationalization of law was also challenged from a point of view that emphasized the expectations of business people and the interpretation of legal propositions in terms of the meaning they would have in ordinary commerce.³¹

Max Rheinstein in his introduction to Max Weber on Law in Economy and Society presents this as being like the debate between formalists and realists in the early twentieth-century United States, with the realist side represented for example in Felix Cohen’s critique of formalist jargon in “Transcendental Nonsense and the Functional Approach.”³² Cohen thought it was still possible to move away from the technical vocabulary of legal science to the sociologically and economically more realistic terms of public policy discourse for the formulation and elaboration of law. To a certain extent this succeeded, in American jurisprudence at least, with formalism being regarded these days by most American lawyers as a fatuous aberration. (We will come back to this – at length – in Section V of the chapter.)

But Weber’s conclusion was different. He thought Common Law and Common Law jurisprudence was declining, even in its strongholds. He thought the increasingly technical character of law was irreversible, and notwithstanding all the pushback, the legal ignorance of the layman was bound to increase. Modern law could not now be regarded as anything other than “a rational technical apparatus which is continually transformable in the light of expediential considerations and devoid of all sacredness of content.”³³

IV No Room for Absolutes

To summarize then: the Weberian rationalization of law that I am associating with its desanctification combined a number of trends. The normativity of law was now systemic, rather than characteristic of any proposition in particular. No particular provision carried any categorical normativity considered as detached; its normativity was always relative to the system of deductively interconnected propositions of which it was a part. So far as justification is concerned, it was the whole system that was answerable to the demands of what Weber referred to as “expediential considerations” – that is, to ongoing experience of how the system worked for industry, commerce, and markets.

At the same time, the language of the law tended to become more technical, distancing it from the ordinary vocabulary in which moral demands were expressed, not to mention the vocabulary that characterized the more powerful demands of natural law. The process was confusing, however, since the technical language used in legal formalization often involved adding layers of systemically determined meaning to ordinary-language terms, rather than the invention of a whole new technical jargon. This created the impression that legal formalization refuted – rather than just stood aloof from – classical natural law norms of property, contract, etc.

True, inasmuch as this whole process was uneven and incomplete, occasionally the ordinary-language meaning of legal propositions would erupt into view and be accorded substantive importance by a judge or a party. But there was no telling when this would happen, and the haphazardness of its occurrence and the attempts to deal with it under the auspices of formalized law created an additional layer of technical challenge to those who were trying to approach the law in ordinary-language terms.³⁴

These developments made it harder overall to approach private law in moral terms. Certainly, it was not easy to sustain positions associated with the sanctity of property rights and contracts. One could hardly think of pacta sunt servanda or the inviolability of property rights as having sacred status now that “contract” and “property” had become in effect technical terms, whose normativity was determined systemically rather than by reference to some story we might tell – a Lockean story, for example – about the essential importance of the substantive content of any particular norm. In any case, it was harder to sustain a consistent sense of the importance of these concepts, when they surfaced only haphazardly in formal legal discourse. There came to seem something quaint and old-fashioned about regarding them as anything like absolutes.

Even the idea of legal obligation became problematic and remains so, as evidenced by the struggle of some modern American jurists to try to retrieve a sense in which contract law and tort law, for example, express categorical as opposed to negotiable obligations. (Here I have in mind the work of people like John Macpherson and Ben Zipursky in tort law and Peter Linzer in contract law pushing back against doctrines of “efficient breach.”)³⁵ The doctrine of the “efficient breach” of ordinary civil obligations has meant their reconception as something more like options than like deontic requirements. We used to talk of the sanctity of contracts, but now we just balance different positions in a matrix of costs and benefits. Or that’s the way it sometimes seems.

V Legal Realism

I mentioned earlier that Max Rheinstein, one of Max Weber’s American editors, presented Weber’s account of technical rationalization as the victory of a certain sort of legal formalism.³⁶ We saw Weber talking too of the irrationality of any attempt to reconcile the technical vocabulary of formalized law with the professional expectations of business people, except insofar as they were legally trained, let alone the normative expectations of the ordinary citizen. But there is more to say about the fate of formalism in the American context, and, as Rheinstein acknowledged, a different story to be told in the USA about the processes of pushback against formalization.

Today, in American legal theory, it is legal formalism that is seen as irrational or, even worse, as sinister – for a lot of the legal realist critique was against the class interests being covertly promoted under cover of formalism’s “transcendental nonsense.”³⁷ At any rate, it is seen as largely a defeated movement, considered as a jurisprudential and educational theory. In large part, it is the legacy of the realists that has endured, not just in the modern cult of the personality of judges, but also in the openness of legal reasoning and law’s elaboration to policy ideas, like law and economics.

But it is open only to a particular sort of policy discourse, with a momentum of its own; and that policy discourse also challenges the possibility of legal absolutes. It by no means represents a return to anything like natural law ideas. It is the language of economics – either cost–benefit analysis or the wealth-maximization approach of the formal economic analysis of law. Defenders of those approaches will no doubt complain that this process is incomplete; they may call for it to be taken further, to extirpate the last vestiges of old-fashioned morality from our legal thinking. My point is that, despite it being a more realistic as opposed to formalistic framework, it is no more hospitable to older deontic principles or to considerations of justice or human dignity than was the case with the older formalist discourse.

The problem of justice is particularly acute. Despite having seen a resurgence in moral and political philosophy,³⁸ considerations of justice continue to be excluded or at best represented in distorted fashion in modern policy calculations. There is the clumsy ineptness of viewing distributive justice as just one benefit among others in cost–benefit analysis. Some people have a taste for equity, we are told, so the equitable character of any legal provision generates at least that degree of benefit to be weighed in a consequentialist calculus alongside whatever other benefits or costs it involves. And the extent of the benefit should be determined by what the individuals in question – the ones who value justice – are prepared to pay or forgo for its sake. We may denounce these maneuvers as ethically tone-deaf, but it is less clear how we are actually to account for such values in cost–benefit analysis or in the business of wealth-maximization.³⁹

All this represents an aspect of desanctification that is no longer a simple function of the operation of a technically designed formal code. In some ways it is the emergence of exactly the realistic policy science that the realists called for in opposition to formalism. Its failure to accommodate ethical absolutes is no longer a matter of legal form, though it is, in a sense, a matter of the form and formalization of the modern science of policy.

VI From Private Law to Public Law

A Mala in Se

Max Weber’s account of formalization applied mainly to private law and certainly, in the American battle between formalists and realists, private law was the main battleground. Admittedly, the realists were skeptical of the public law/private law distinction. Weber also entertained doubts about the distinction.⁴⁰ If public law was understood as instructions to officials, private law could be viewed as instructions to officials to do something about private disputes.⁴¹

In any case, though the processes just described are processes involving private law formalism, we also find as great a normative loss in public law. Although, as we have seen, there has been a decline of belief in the “sanctity” of contracts and the “sacredness” of private property rights,⁴² the problem of legal absolutes arises acutely in the realm of public law as well. Here, we have to think about ways in which the development of law and modern morality puts in question what used to be thought of as absolute prohibitions in criminal law, for example, and in the law of human rights. Weber is less directly helpful here, although we follow his insight that the desanctification of law can happen in several different ways, “depending on which of several possible courses legal thinking takes towards rationalization.”⁴³ The process whereby erstwhile absolutes were drained of their deontic normativity certainly followed a different path in areas of avowedly public law. Weber’s account offers a starting point, but we need to fill out the characterization of the whole process.

Let us begin with those criminal law prohibitions that used to be seen as representatives of ancient mala in se – “Thou shalt not kill” etc.⁴⁴ Even they are no longer conceived – or certainly no longer presented – in directly deontological terms. They are technical in their presentation: there is no categorical norm addressed directly to the populace. Instead, the style of modern criminal law formulations is to address just the decisions and problems that officials face in regard to killings by citizens: offenses are defined in elaborate terms and distinguished from one another, and punishments are specified (though this itself is often indirect too, referring to classes of felony, provision for the punishment of which is made elsewhere in the code.)⁴⁵

Hans Kelsen was convinced that this was an important feature of modern law, that it mostly addressed itself to the officials of the state. “For Kelsen, a law consists exclusively of an instruction … for a government agent to apply a punishment under a set of defined circumstances.”⁴⁶ He said that if we infer a duty upon the subject to avoid the conduct to which the punishment is attached, “this ‘ought’ is, so to speak, an epiphenomenon of the ‘ought’ of the sanction.” We “overhear” the instruction to apply a sanction and figure out from that what we are not supposed to do.⁴⁷ We may find it stylistically pleasing to refer to this inference as the norm. But according to Kelsen, the only true “ought” in the situation is the “ought” addressed to the official.⁴⁸ H. L. A. Hart insisted, in response to Kelsen’s characterization, that it is the function of such laws, nevertheless, to guide the conduct of citizens.⁴⁹ But his insistence on this is simply dogmatic – rooted in an “old-fashioned” sense of what it is that law must do. It is certainly not grounded in any of the ways in which modern legislation is expressed.

If, as Blackstone thought, “the very essence of right and wrong depends upon the direction of the laws to do or to omit them,”⁵⁰ then our laws no longer try to get at the essence. Despite containing what ought to be thought of as mala in se, our laws formulate them in precisely the style that Blackstone specified for mala prohibita.⁵¹ Mala in se are supposed to be binding in conscience so that positive law adds little or nothing to the prohibition and penalties applied by divine law. But as for mala prohibita, “[t]hese become either right or wrong, just or unjust, duties or misdemeanors, according as the municipal legislator sees proper, for promoting the welfare of the society, and more effectually carrying on the purposes of civil life.” Such offenses “have no foundation in nature, but are merely created by the law, for the purposes of civil society.”⁵² All there is to their proscription is a definition and the specification of a penalty.⁵³ My point is that mala in se – of which we are supposed to have an independent moral understanding – are now expressed in this mala prohibita form also. It is as though the only important thing about them is how they are officially defined and what penalty they are associated with.

One might say that this is just a matter of draftsman’s technique.⁵⁴ Perhaps we were never going to find “Thou shalt not kill” written in the books of positive law. Positive law is never just an application of moral ideas; it involves specification, or as the natural lawyers call it determinatio.⁵⁵ Moral ideas do not initially present themselves in law-like form, if what we mean by law-like is something that can work in the real world like a law. Real-life laws are complex bodies of articulate doctrine and ordered criteria. The layman sometimes complains that cases in law are won or lost on “technicalities.” But lawmaking is largely a technical matter, with all sorts of devices that look counterintuitive to the sensitive conscience but which are required to ensure administrability (e.g. in the particular and themselves highly regulated circumstances of a court), to take into account other moral needs that may be relevant to administration (procedural fairness, for example), and to allow a given provision to take its place in a coherent and complex corpus juris.⁵⁶

These technical aspects of positivization would have to apply even if the legal norm in question purported to be just an embodiment of a moral norm. So even in the case of rules which undoubtedly are not conventions – for example the rule against killing – John Finnis observes that “it is the business of the draftsman to specify, precisely, into which of these costumes and relationships an act of killing-under-such-and-such-a-circumstance fits. That is why ‘No one may kill … ’ is legally so defective a formulation.”⁵⁷ Details have to be settled; rules of evidence, presumptions, and burdens of proof laid down; bright lines drawn; operationalized criteria established; and so on. All of this can be acknowledged. Still it makes it harder for law to function as any sort of great public morality, embodying officially endorsed moral absolutes.

B Fundamental Rights

The other category of what might have been thought of as transcendent absolutes arises in human rights law. Some have argued that human rights can’t properly be understood except in religious terms.⁵⁸ There is no doubt that the dignitarian terms in which they are presented are open to that interpretation, even if they do not compel it. Certainly human rights are expressed in deontic terms, at least in the great charters and covenants. Those documents are unabashed about referencing the supra-positive inspiration of these rights;⁵⁹ their formulation in the texts of these covenants is explicitly presented as the positivization of what are supposed to be morally compelling ideas. So, for example, Article 7 of the International Covenant on Civil and Political Rights (ICCPR) makes the following no-nonsense claim: “No one shall be subjected to torture … .” Not only that, but the Article 7 provision is explicitly insulated from any consideration of emergency conditions. Article 4 (1) of the ICCPR says that “[i]n time of public emergency which threatens the life of the nation … the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation.” But then it is quick to add in subsection (2) that “[n]o derogation from article[] … 7 … may be made under this provision.”⁶⁰

However, as they work their way into a municipal legal system, the deontic character of their formulation is diluted. Human rights provisions are often doubly or multiply positivized – for example, in national as well as in international human rights law.⁶¹ And the second positivization of the torture provision in American law is much more technical than its positivization in the ICCPR. There is nothing equivalent to the deontic formula “No one shall be subjected to torture … .” Instead there is a reversion to the Kelsenian directive form. Our torture statute⁶² contains an elaborate definition of the offense:

As used in this chapter—(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control; … .

And then that is followed by an (admittedly quite draconian) provision for punishment.

Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.

The punishments threatened are fierce. But “Thou shalt not torture” does not get a look in. There is not a lot of normativity in §2340.

Again we could dismiss this as just a matter of drafting technique. But when the United States was actually faced with a years-long crisis about official use of torture in our black prisons overseas in the first decade of the war on terror, all sorts of maneuvers were adopted to reinterpret §2340 or to find indeterminacy in its formulations that could be exploited to make room for “coercive interrogation.” Boalt Hall Professor John Yoo’s and Judge Jay Bybee’s technique of “reading down” the statutory definition, in a memo from the Office of Legal Counsel, became notorious.⁶³

The Bybee memo also raised the possibility of a necessity defense against any allegation of a violation of the anti-torture statute:

As it has been described in the case law and literature, the purpose behind necessity is one of public policy … “the law ought to promote the achievement of higher values at the expense of lesser values, and sometimes the greater good for society will be accomplished by violating the literal language of the criminal law.” [T]he more likely it appears to be that a terrorist attack is likely to occur, and the greater the amount of damage expected from such an attack, the more that an interrogation to get information would become necessary.⁶⁴

A similar argument was made, and conceded in principle, in the Israeli High Court’s torture decision of 1994. The court said that it was “prepared to accept that in the appropriate circumstances, GSS investigators may avail themselves of the ‘necessity’ defence, if criminally indicted.” (The court did however go on to insist that no ex ante authorization could possibly be inferred from this.)

The absolutism of individual rights is often taken as the leit-motif of American jurisprudence.⁶⁵ In fact, although rights are spoken of as absolutes, time and again courts prove themselves ready to balance them and trade them off against one another – and not only against one another but against various considerations of the general interest, whenever it seems appropriate to invoke that. As Mark Tushnet puts it, “Rights become indeterminate as first one side and then the other attaches new long term consequences to recognition or denial of particular claims of right.”⁶⁶ These are Critical Legal Studies claims and none the less insightful for that.

We need to look at rather than fantasize about the commitment to rights in American law. As Duncan Kennedy has observed, there is in real-life American jurisprudence a sort of flattening out of the distinction between rights-arguments and policy arguments. Talk of constitutional rights does not preclude “open-textured arguments from morality, social welfare, expectations and institutional competence and administrability. … The rights are just legal rules, more or less abstract, more or less easy to administer, that we are trying to interpret along with all the other legal materials to justify our outcomes.”⁶⁷ In other words, our actual experience with rights in law is far from the sort of reverence for them and paramount enforcement of them that rights-rhetoric would suggest. The use of balancing and proportionality as characteristic of the actual administration of most rights (i.e., rights set out in the Constitution and in international covenants, as well as ordinary rights in statute and common law). One or two philosophers may conceive of rights as trumps;⁶⁸ but in law they are just cards – and pretty low cards at that – played in the ordinary suits or currency of political compromise.⁶⁹ In other words, what we see in all of this is the erasure of any uncompromising deontology. Rights no longer present themselves as the legal embodiment of absolutes. Like everything else in law, they have been made tractable, negotiable – reasonable.

VII The Desanctification of Morality

So what? Even if law itself is developing and changing in these various ways, still are we not able to deploy whatever moral standards we like to evaluate the law as it is, and if need be to denounce it? If existing legal practice appears to countenance something that ordinary language would call “torture” or if it doesn’t seem hospitable to an absolute prohibition of the practice, can we – who are disturbed by this – not use traditional deontological prohibitions to condemn this? John Yoo once said to me in a debate in 2005, “I think it would be very difficult to be a Kantian and have any responsibility in the government.”⁷⁰ But surely from outside government, we critics can say anything we like. We might even use religious arguments against torture, as I tried to do in 2006 in an article in Theology Today,⁷¹ or as David Gushee and others did in 2007 in An Evangelical Declaration against Torture.⁷²

This is fine, up to a point. As critics, we can do what we like and judge the laws that apply to us by whatever standards seem appropriate, irrespective of the processes that modernism dictates and Max Weber describes. And if moral evaluation of law were a purely personal matter, that would be a reasonable response. If it were purely a matter of determining one’s conscientious stance as a citizen toward a given law or one’s own compliance, in circumstances where cooperation in evil was called for, one could deploy any moral standards that seemed right or true.

But in social and political life, we mobilize shared standards to evaluate the law together; in criticizing a law for failing to meet a given standard, one offers that criticism to one’s fellow citizens and one expects what one is saying to make sense to them. I am not distinguishing here between critical and positive morality (though the latter category is woefully under-explored in political and legal philosophy).⁷³ I am talking about modes of critical moralizing that seem natural, appropriate, and familiar to those with whom one shares the enterprise of evaluating positive law. And the worry is that, at this level, the shared standards that make social sense – that seem appropriately put forward – as a reasonable basis for the moral evaluation of law also seem to be losing the deontic dimension of their meaning. One says something – something deontological as it might be – and one receives a sort of blank stare from one’s audience. (I remember such a blank stare in a faculty seminar once at Columbia Law School when I suggested that the design of bankruptcy law was a problem in distributive justice rather than economic efficiency.)⁷⁴

What I am suggesting here is that the desanctification of law is not a matter of detaching it as an autonomous discipline from its erstwhile moral underpinnings.⁷⁵ Maybe as law becomes more technical and harder to appreciate intuitively, it is correspondingly more difficult to apprehend as the embodiment of extralegal principles. But what is even more difficult is to relate law systematically to a set of, as it were, old-fashioned moral principles. New law has its own new morality to go along with it.

I say this to avoid the impression that desanctification is just legal positivism in another guise. Legal positivism is connected with desanctification. And legal positivism did try to drain law of its moral content and moral meaning – though not necessarily to discredit the moral enterprise as such. The idea was to separate law and morality, not to destroy the latter. One or two positivists might have inclined in a more destructive direction – Thomas Hobbes, for example, in his suggestion that law’s function was to supersede morality,⁷⁶ and Hans Kelsen’s corrosive moral relativism.⁷⁷ For most legal positivists, however, morality is kept separate from law and intact – first, so as to clarify one’s sense of the objective legal situation without contamination from wishful thinking. Then, second, one keeps morality separate so that it can be brought back, in its uncontaminated character, to bear on the task of evaluating law and determining our (morally) appropriate attitude towards it. Or at least that is the official story.⁷⁸

It does not follow, however, that the processes Weber and others described have no impact on morality, that is, that they only have impact on law. It is perfectly consistent with the positivist picture – crude and un-thought-through as it is in the hands of most modern legal philosophers – that those processes have an impact on the morality (that is reserved for the critical appraisal of law) which is quite like its impact on law itself. Put more simply, I am inviting us to consider the possibility that the social processes that change the character of law also change the character of morality concomitantly.⁷⁹ The process of the rationalization and desanctification of law may be matched by isomorphic processes of rationalization and desanctification of morality – at least of the morality that can plausibly be put in play where legal evaluation and legal change are at issue. The morality that results is not necessarily tame or uncritical; but it subjects law only to certain kinds of critique and it makes other moral critiques seem odd or inappropriate.

So consider, for example, the transformation of “morality” contemplated as a realistic standard of evaluation by the American legal realists. Maybe the Langdellian formalists had their own vision of morality to map onto their legal logic.⁸⁰ Be that as it may, certainly some of the legal realists envisaged making law amenable to substantive evaluation. There would be a perspective from which law could be evaluated for the purposes of reform and to which it could be made accountable. But the realists thought it important to emphasize that it was going to be a new sort of evaluation and a new sort of moral accountability.

“[T]he man of the future,” said Oliver Wendell Holmes, “is the man of statistics and the master of economics.”⁸¹ If there was to be morality in the work of legal scientists, it was not going to be a theological or deontic morality. Thirty years later, Felix Cohen put the point this way:

What a judge ought to do in a given case is quite as much a moral issue as any of the traditional problems of Sunday School morality. It is difficult for those who still conceive of morality in otherworldly terms to recognize that every case presents a moral question to the court. But this notion has no terrors for those who think of morality in earthly terms. Morality, so conceived, is vitally concerned with such facts as human expectations based upon past decisions, the stability of economic transactions, and even the maintenance of order and simplicity in our legal system.⁸²

The words “ethics” and “morality” mean a lot of different things, says Cohen, but “[t]he spontaneous outpourings of a sensitive conscience unfamiliar with the social context” are not what modern law needs.⁸³

If ethics is chiefly concerned with the problems that teachers of ethics have discussed during the past three or four hundred years, that is to say, with the conduct of a man towards his next door neighbor and towards his next-door neighbor’s wife … and, on the whole, with questions of manners rather than with basic questions of social values, then ethics has little to offer to those who practice or study law. … [T]he basic problems of the law today involve social forms and patterns that cannot be compressed into the narrow confines of what may be called “Sunday School ethics.” Only an ethics that squarely faces the problems which modern commerce and modern science have brought into our world can offer any worthwhile gifts to modern law.⁸⁴

This is certainly a rejection of pure formalism; it involves a substantial rationalization of law. But the nature of the rationalization and the nature of the evaluations it contemplates make it harder to accommodate values like justice and dignity, and harder still to insist on moral absolutes.

All that is from the side of the lawyers. What about the philosophers? Well, it would be wrong to deny that modern moral philosophy is also complicit in this new understanding of social morality. Its main features are a pervasive consequentialism and a reliance on “reflective equilibrium” to avoid conclusions that sound dogmatic or unreasonable.⁸⁵

For example, everyone makes fun of Kant’s remark that lying is absolutely wrong: we just know that lying is sometimes right and, unlike the old Prussian dogmatist, we have the methodology to accommodate that conviction.⁸⁶ It just can’t be right that there is a duty to tell the truth when better results will accrue from falsehood; any principles that seem to have that implication obviously require some adjustment. Or to take another example: I remember during the torture crisis of 2003–08 finding precious few moral philosophers who were prepared to stand for a moral absolute in that regard. I found both lawyers and moralists saying that there just could not be – they couldn’t make sense of – an absolute prohibition on torture. There would always have to be some necessity one could appeal to in order to excuse if not justify torture, some technique of “reading down” the prohibition, or some indeterminacy in the legal meaning of words like “torture” that would make ostensibly implacable norms negotiable. The thought seemed to be that effective but coercive interrogation just can’t be something whose use is simply foreclosed (as opposed to being rendered inadvisable in most circumstances). There were always ticking bomb hypotheticals to be manufactured⁸⁷ and residual doctrines of the avoidance of “catastrophic moral horror”⁸⁸ to mitigate the rigor of morality’s strictures. Habermas talks of the erasure of “the deontological dimension of normative validity” within morality itself.⁸⁹ I fear he is right.

One or two philosophers, conscious of this transformation, have suggested that it is actually the loss of the law’s ability to sustain absolutes that has led to a loss of faith in them in moral philosophy. If law has lost some of its moral bearings, morality too is losing some of the bearings that it took from a certain conception of law. Morality used to be structured partly in the way that law was once thought to be structured.⁹⁰ Now it is harder to see either enterprise as deontological. I know that when I wrote about moral absolutes a few years ago I said (rather over-confidently), “we know what legal absolutes look like” – categorical prohibitions stated starkly that do not seem to brook any justifying conditions – and I said it would do no harm to begin with them as our role models.⁹¹ But now I think there are no such role models, and morality is impoverished because there is so much less to be learned from the law.

Almost sixty years ago, G. E. M. Anscombe was already venturing this diagnosis.⁹² Concepts like moral obligation and moral duty and the moral sense of “ought” are nowadays quite mysterious, she said. “It is as if the notion ‘criminal’ were to remain when criminal law and criminal courts had been abolished and forgotten. … The situation, if I am right, [is] the interesting one of the survival of a concept outside the framework of thought that made it a really intelligible one.”⁹³ Concepts like moral obligation and moral duty used to be intelligible within a framework of divine law; now they are so no longer, and the result is a complete transformation in our sense of what we ought to tolerate:

Every one of the best known English academic moral philosophers has put out a philosophy according to which, e.g., it is not possible to hold that it cannot be right to kill the innocent as a means to any end whatsoever … . Now this is a significant thing: for it means that all these philosophies are quite incompatible with the Hebrew-Christian ethic. For it has been characteristic of that ethic to teach that there are certain things forbidden whatever consequences threaten, such as: choosing to kill the innocent for any purpose, however good.⁹⁴

Anscombe believes that this failure to accommodate the possibility that certain things are prohibited “simply in virtue of their description as such-and-such identifiable kinds of action, regardless of any further consequences” is surely the most important fact about modern moral philosophy.⁹⁵

It is not just a matter of convictions. It is also a matter of moral methodology. Since Anscombe’s day, philosophers have become accustomed to the methodology of “reflective equilibrium,” a process by which we bring our abstract and universal commitments into line with our considered judgments about particular matters by making adjustments at both ends – reconstructing our principles and abandoning or modifying a few of our considered judgments. The hope is that we will eventually be left with a set of considered judgments we can cling to, which is in rough equilibrium with a set of principles rigged to generate them.⁹⁶

In this process, it seems, we think of the principles we are working on as “ours” – ours to change or modify as the exigencies of reflective equilibrium dictate. Can we still say of the result that it is objectively true? Maybe; but if so, objectivity is just a label we paste on to the product of our rethinking, the product of our drive to find a position we are comfortable with. A deeper sense of objectivity would cover principles that present themselves to us in a more uncompromising and non-negotiable way. These would not be treated as norms that we have control over; they would not be for us to tamper with.⁹⁷ Understanding such principles as divine commands or transcendent givens, we would understand ourselves as more passive in the recognition and construction of principles put forward for the evaluation of law than modern moral philosophers generally take themselves to be.

VIII Ultimate Ends and “Politics As a Vocation”

Some will say it is not an impoverishment to cut both law and public morality away from their more irrational and sectarian manifestations. We need a body of law that is apt for use in the modern world, they will say, and it needs to be matched by a morality that can be used rationally by the members of a political community, acting together, to evaluate law’s serviceability for that purpose.

The idea of “public reason,” introduced in John Rawls’s later work, can be understood as a way of disciplining the moral evaluation of law along these lines.⁹⁸ Though in principle people might deploy all sorts of standards – some traditional, some religious, some deeply philosophical – to evaluate the laws we have, the idea is that we should limit the evaluative arguments that we introduce into the public realm to those we can reasonably expect all others to understand. Nothing can be regarded as an appropriate contribution to public deliberation unless it is phrased in terms that make sense to all the members of the society, in all their ethical, philosophical, and religious diversity. That means that we should be very wary of introducing religious conceptions into politics – since these are inherently divisive – and very wary of taking a public stand on moral absolutes if the grounding of these presupposes religious or philosophical commitments on which a large number of our fellow citizens have long since turned their backs. If I say that terrorists must be respected like everyone because they are created in the image of God,⁹⁹ or if I say that torture “is a sin against the Holy Ghost,”¹⁰⁰ I am not saying anything that my secular fellow citizens can get their minds around and I am myself committing the sin of incivility by simply giving voice to my own theological convictions instead of engaging with my fellow deliberators on terms we can all understand.

The Rawlsian idea of public reason remains controversial;¹⁰¹ I mention it here simply as an instance of the way in which some philosophers think morality has to transform itself to match the needs of a desanctified body of law.

Finally and even more substantively, we may circle back round to one last thesis from Max Weber. As we saw in Section II of this chapter, Weber’s account of the processes we have been describing is mainly formalistic: law has had to become formalized in a way that puts it beyond the reach of certain kinds of evaluation. But Weber matches that with a substantive thesis as well. In his great lecture from 1919, “Politics as a Vocation,” he maintained that a responsible person with a vocation for politics must, in a sense, commit himself broadly speaking to a consequentialist ethics.

[T]here is a profound abyss between acting in accordance with the maxim of an ethic governing an ethics of conviction and acting in tune with an ethics of responsibility. In the former case this means, to put it in religious terms, “A Christian does what is right and leaves the outcome to God,” while in the latter you must answer for the foreseeable consequences of your actions.¹⁰²

Sanctity and political responsibility stand on opposite sides of this abyss. Someone committed to an ethic of ultimate ends is admirable in a way, but with his repudiation of every action that makes use of morally suspect ends he must be kept away from politics.

No ethic in the world can ignore the fact that in many cases the achievement of “good” ends is inseparable from the use of morally dubious or at least dangerous means ones and that we cannot escape the possibility or even probability of evil side effects. … [I]t is not true that nothing but good comes from good and nothing but evil from evil, but rather quite frequently the opposite is the case. Anyone who does not realize this is in fact a mere child in political matters.¹⁰³

It is not just a point about consequentialism; it is a point about politics itself and its artifact, law. For, however elevated our jurisprudence may be, there is no getting away from the fact that “[i]n politics, the decisive means is the use of force” and that the making, changing, and evaluation of law is also about the way in which in the last resort force will be used in our society.¹⁰⁴ “Whoever makes a pact with the use of force, for whatever ends (and every politician does so), is at the mercy of its particular consequences.”¹⁰⁵

Myself, I don’t believe that this means that a responsible politician gives up on the very idea of certain actions – actions of certain kinds – being beyond the pale in politics. It is one thing to accept that politics will inevitably involve distasteful actions;¹⁰⁶ quite another to say that no action, however wrong or distasteful can ever be finally excluded. The trouble is that the denigration of those who renounce the merely distasteful in politics probably makes it much harder for us to sustain any sense that, nevertheless, there are some things that are forbidden.

IX Conclusion

It has been hard to know what tone to take in this chapter. The English satirical magazine Private Eye used to have an “old fogey” poet on its staff in the 1980s who would write doggerel beginning, “Oh, isn’t everything awful / in this dreadful modern age.” The tone of what I have written sounds, on rereading, like a litany of grumpiness or frustration or both, and that worries me. Obviously I regard some of the developments I have set out as deplorable. But the aim has been to describe and characterize desanctification – admittedly from the perspective of someone who cares about it – rather than to deplore it.

Also, it is easy to sound hysterical about all this, as though the processes described were univocal in their tendency and utterly out of our hands. But in exploring these developments, I do not want to commit myself to a hard-and-fast version of these processes. We are talking at most about tendencies – tendencies that have proceeded unevenly across legal systems and across areas of law for a century or more. The chapter tries to describe a reduction in the ease and naturalness – the increasing difficulty and a diminishing sense of the plausibility – of certain pathways of moral and legal thought.

Finally, the normative tenor of this piece is supposed to be diagnosis and vague lamentation; no recommendations are on offer. I do believe that we need some sense of absolute prohibitions in morality; we should not be turning our backs on a whole dimension of normativity. But the processes traced here – processes of desanctification identified by Weber and others – indicate how deep and difficult it may be to restore that normative dimension.

2 The Paradox of Human Rights Discourse and the Jewish Legal Tradition

Suzanne Last Stone ^*

I Introduction

Nearly two decades ago, I was invited to contribute to a collection of essays convened to explore the possibility of “articulating a position of human rights on assumptions of humankind and of the cosmos other than those of Western liberal civilization.”¹ The project was self-consciously constructive: to creatively mine potentialities within a given religious tradition that could support certain desirable insights of modernity while maintaining a commitment to tradition and religious identity. The hope of the project was that, with sufficient effort and creativity, religions, no matter how diverse, would discover that human rights were, in some fashion, always already there. After all, religions were each, in different ways, concerned with human worth and flourishing even if they did not ascribe to the politics or philosophical anthropology of Western modernity. In the case of Protestant Christianity and other reformed religions, the leap clearly would be short, for certain basic assumptions about religion (as primarily concerned with belief rather than law or public practice and with private conscience rather than group cohesion or institutional authority) are most congenial to the worldview that gave rise to Western rights discourse in the first place. With respect to non-Western or non-reformed religions, especially competing law-based religions, the hermeneutic project would be vastly more complex. Indeed, translation and reinterpretation are all the more difficult in a self-conscious age already suspicious of liberal or reformed religion. So other denominations and religions would simply have to work harder to remain reasonably faithful to their traditional texts, traditions, and internal viewpoints.

Projects such as these have only proliferated in recent years among human rights advocates, civil society groups, and theologians. In turn, scholars within the growing field of critical human rights, such as Sally Merry and Seyla Benhabib, have provided new theoretical frameworks for supporting them. While Merry emphasizes how the idea of human rights becomes meaningful only through translation in specific cultural contexts into a distinct vernacular,² Benhabib, drawing on Robert Cover’s idea of law’s jurisgenerativity, emphasizes the inevitably interpretive character of human rights.³

In this chapter, I want to suggest that such efforts to reconcile human rights and religion are at risk of foundering because of two category mistakes highlighted by this volume of essays: The first mistake is the assumption that the human rights project, as it has evolved, is primarily about law – that is, a modern normative and political project. The second mistake is the assumption that “religions” such as Judaism – especially its non-reformed versions – are not law. I am not the first to observe that human rights, in pursuing a politics of meaning rather than of exchange, increasingly has taken on a structure that could be fruitfully compared to religion. As Mark Goodale has pointed out, the study of human rights as discourse increasingly has revealed “the way in which actors embrace the idea of human rights in part because of its visionary capacity, the way in which it embraces the normative and the aspirational.”⁴ Far from providing a common ground with traditional religions, I contend that the contemporary emphasis on the philosophical underpinnings of human rights has been largely detrimental to the original normative and political project of human rights and to a possible convergence between the human rights tradition and many non-Christian, non-reformed religions. The incontrovertible or absolute character of human rights blurs the division between secular morality based on unaided reason and the realm of the sacrosanct, inviolable, or the sacred occupied by religion. While the intention may have been for the creation of a common language of natural morality, it has led instead to ever more divisiveness, as adherents of religions perceive human rights discourse as imputing sacredness, understood as ultimate meaning or concern, where it does not belong.

My second argument, in turn, is that the legal dimension of traditional religions such as Judaism has been vastly underexploited in these various projects of reconciliation. Legal traditions almost invariably contain a variety of doctrines that enable an exchange of norms and smooth out conflict of laws between legal regimes. Judaism is no exception. Commonplace legal arguments and legal sources, such as respect for conventions and for consensus such as the custom of the nations, offer a more useful framework for creating a rapprochement between human rights and religion when dealing with legally based religions, such as traditional Judaism (and, by some accounts, Islam)⁵ than appeals to biblical, religious imagery or an assumed common morality. Creating a rapprochement between human rights and traditional Judaism thus requires a double move: first, the retrieval of human rights as a lawyer’s project – a normative project based on formal and informal conventions – and, second, the turn to legal doctrines and concepts within Judaism emphasizing the respect owed to international law and conventions, including informal law.

The chapter proceeds as follows: I will briefly survey what has happened in the discourse of human rights in the last several decades, focusing on developments that elide the difference between human rights as a modern secular political project (i.e., to extrapolate the concrete rights of citizens onto the international arena) and human rights as increasingly a quasi-religious project, or politics of meaning. I then offer a concrete example of the challenge of eliciting from Jewish sources, including from its most promising religious image – the creation of humans in the divine image – a common language of sanctity or a conception of rights equally held by all humans as such. That humans possess rights by virtue of being human alone detaches rights from the idea of desert, which I argue is central to the halakhic imagination. This does not mean that Judaism lacks a means of organizing life together with others, including on commonly recognized ethical notions, such as reciprocity. Reciprocity provides the crucial link to desert. Indeed, those thinkers within the halakhic tradition who have most advanced a discourse of human rights, such as Rabbi Hayyim David HaLevi, draw on a distinct tradition within Jewish legal thought that formulates duties owed to others around the ideas of reciprocity and recognition.

Finally, I will draw on Jewish legal sources to explore a different strategy of convergence between religion and human rights that emphasizes human rights as a purely political project revolving around consensus and convention. Indeed, there have been an increasing number of voices within the human rights tradition calling for a ratcheting down of the language of sacredness, of ethical universalism, of moral or ontological arguments, and a refocusing on human rights as a more limited international political project: a legal regime. Human rights, after all, as Adam Seligman writes, are a theory: “Though often treated as sacrosanct, they are but means to a further end … They are one way to live together based on some commonly acceptable notions of fairness and justice.”⁶

II Human Rights As a Secular Political Project?

The standard history of the rise of human rights as a modern Western political project goes as follows: Talk of rights can be linked historically to the decline of the feudal order, the emergence of national states and market economies, and to the invention of the autonomous individual in the European imagination at the origins of modernity. From political rights of peoples and minority groups, political, civil, and social rights became extended to individuals as citizens in the state and eventually conceived as held by humans as such, inviolate and inalienable.⁷ The discourse of human rights drew on diverse philosophic antecedents, from Locke and conscience to Kant and dignity and the reading of the self as a self-regulating agent. The common thread, however, was that identifying and securing human rights was a key political project of secular modernity and, as such, to be validated through public reason accessible to all.

What has changed? In order to make sense of the contemporary scene, it is useful to first distinguish between three expansive, modern visions of human rights that roughly correspond to three succeeding stages:⁸ The first is human rights as a legal regime consisting of hard law such as binding conventions and bills of rights. The second is human rights as a set of universal moral standards that apply to all people in all places, irrespective of their beliefs. In this view, rights are rooted in fundamental values shared by all human beings by virtue of their being human. While it is common to suppose that the idea of human rights as moral rights has driven human rights law, the relationship is primarily the reverse. The intense preoccupation with substantive moral theories today generally grew out of what William Twining calls the misguided view that human rights as a legal regime “can and should be founded on a coherent philosophy or ideology” – on the straightforward embodiment of moral universalism. The fact, however, of diversity of beliefs on the ground led to the third vision: discourse ethics, which seeks to shift the conversation to “rights talk” as a form of discourse in public reasoned discussions that provides a framework for argument across societies.⁹

In all of these versions, however, the discourse is almost always centered on rights and the individual human being is viewed as the basic legal subject and unit of morality. This language of human rights has become the dominant mode of public moral discourse, replacing such discourses as distributive justice, the common good, and solidarity. Indeed, it has become something of a faith of its own. And in the course of constituting itself as a quasi-faith, certain intellectual trends within the discourse of human rights have become clearer or, at least, far more prominent. The most pertinent for my purposes is an increased blurring of the line between religion and the secular and, in its wake, an increased confusion with respect to the question whether human rights is still a modern secular project or something else altogether.

Jurgen Habermas’s “post-secular” turn was one step toward this blurring of boundaries.¹⁰ In his 1981 Theory of Communicative Action, Habermas presented the modern disenchantment and disempowerment of the domain of the sacred as an unequivocal gain for humanity. Now, however, Habermas has called, among other things, for secularly minded citizens to engage critically, along with their religious compatriots, with the cognitive contents of religion.¹¹ More to the point, he calls on philosophy to open itself to – and utilize for its own projects – the power of religious imagery and narrative. Among Habermas’s cited reasons for doing so is the developments in biotechnology, which threaten an instrumentalization of human nature that fundamentally endangers our understanding of ourselves as members of the human species. Resurgent religion and the events of the September 11 terror attacks also prompt the question whether modernization can be rescued by purely secular means. Critical engagement with religious content to produce images, intuitions, and insights are, of course, intended to enrich secular projects – not validate religious truth claims, or lead to greater convergence between religious traditions and modern projects. On this Habermas is clear. The salvaging of religious images, narrative, and moral intuitions occurs in the public sphere – the sphere of public opinion in the weak sense – and not in the strong arena of democratic politics.¹²

Yet, putting aside the questions whether the instrumental turn toward religion is good for religion¹³ or coherent when shorn from any connection with metaphysical assumptions or beliefs,¹⁴ in the context of human rights discourse, one could argue that there is already a deep – perhaps too deep – convergence between the modern secular project of universal human rights and religious images via Christianity. The recent revival of Paul as a political figure in European intellectual discourse in the wake of post-secular philosophy is telling. Consider Alain Badiou¹⁵ and Slavoy Zizek’s calls to the political left to discover the radical universalism of Paul¹⁶ and Giorgio Agamben’s project to restore Paul’s letters to “the status of the fundamental messianic text for the Western tradition.”¹⁷ As Jose Mendonca writes, the reclamation of Paul is clearly caught up in “the current need to respond to the crisis of multiculturalism and the universal.”¹⁸ That crisis, at least in Europe, has taken the form of the demise of the multiculturalist paradigm in favor of a Christian, majority culture¹⁹ and the post-political search for ever-increasing universal norms. In short, the specter of a new Christianized form of politics has haunted the human rights movement.

How indebted the human rights tradition is to Christianity has become a much- debated issue. In the West, the discourse of rights played out, of course, in a Christian context. It is not surprising that its suppositions would be congenial with Christianity. The claim increasingly is made, however, that it was impossible to think it without Christianity, whether due to the “hidden God of Locke,” to the natural rights tradition developed by canon lawyers and theologians in the Middle Ages and inherited by the philosophers of the Enlightenment, or in the traditions of sectarian Protestantism (a very particular Christian tradition defined by beliefs in the inner light and the privatization of grace), and in the humanitarian concern with suffering, with its origins in Christian pity (along with Enlightenment sympathy). On the standard account, the human rights tradition borrowed from religion and then superseded it. From a system of politico-legal norms, it became the shared moral vocabulary of our time. Upendra Baxi puts it succinctly when she writes:

Much of the twentieth century of the Christian Era (CE), especially its latter half, stands justly hailed as the Age of Human Rights. No preceding century in human history witnessed such a profusion of human rights enunciations on a global scale. Never before have the languages of human rights sought to supplant all other ethical languages. No previous century has witnessed the proliferation of human rights standards as a core aspect of intergovernmental desire … .constitut[ing] “a common language of humanity.” Indeed, in some ways, human rights sociolect emerges, in this era of the end of ideology, as the only universal ideology in the making, enabling both the legitimation of power and praxes of emancipatory politics.²⁰

And at the heart of the discursive tradition of human rights is the growing contention that its moral logic, and universalism, is ultimately conceptually incoherent apart from the religious presuppositions. Thus, Michael Perry,²¹ Max Stackhouse,²² and Nicholas Wolterstorff²³ – drawing on diverse Christian themes and history in varying ways – all assert that the foundation of human rights is essentially theological. Certainly, the language of sacredness permeates the discourse; indeed, bare statements are common about the inviolate nature of humans and their sacredness, decoupled from secular justifications for treating humans as sacred (i.e., of ultimate value). Thus, the discourse has shifted from a Western political conception that flourished in a Christian setting; to a secular political and then moral tradition that claimed to have been made possible only by Christianity; and now to a discursive tradition whose key insights are validated by Christianity and by moral intuitions preserved primarily in Christianized readings of the Bible and other religious traditions and narratives.

The Christian reclamation of the human rights tradition has not gone unnoticed. The presumption is quickly vanishing that human rights are in some strong sense neutral, while competing religious claims are local and confined to the communities of interest embracing them.²⁴ But this leveling is only increasing the tension between religion and human rights. Within theory, this leveling and competition is addressed through the debate about public reasons. On the ground, however, it is often seen as a clash between religions.

In one sense, as Shmuel Trigano writes, the modern political always relied on a certain “immanent transcendence,” as much as it may have also disavowed it. Both Spinoza and Rousseau recognized the need for religion – or religion under the guidance of the state – to bolster democracy.²⁵ In modern politics, nationalism, civic religion, and totalitarian political ideologies all took the structure of religion and contributed to a kind of re-enchantment.²⁶ Today it is the modern project of human rights that seeks, in Habermas’s words, to salvage religion for modernity’s purposes. As Sam Moyn argues in The Last Utopia, the birth of human rights on the heels of the death of prior political utopias, including communism, almost immediately led to the forgetting of the contingency of their emergence, especially among the philosophers. Whether this process is unconscious or a logical necessity, it is persistent and recurrent – and human rights discourse has followed this pattern.

In my view, the extreme tension today between resurgent religion and the liberal order seems less over secularism per se, but, rather, over this re-enchantment of the secular state. Whereas before, under thinner conceptions of liberalism, political and public space was secular in the strict sense – profane, or not holy – and holiness resided in the private sphere, increasingly, universal human rights, for better or worse presents itself – and is certainly perceived – as a competing transnational, universal, transcendent realm. Within the religious worldview, however, imputing sacredness to the wrong place is the equivalent of idolatry.

To be sure, philosophical writing about human rights is not the same as human rights as a discourse in public life. Indeed, the characterization of human rights as an absolute and transcendent discourse runs counter to many characteristics of human rights activism in sociological and anthropological scholarship.²⁷ That scholarship attempts to show that human rights discourse bears different meanings across cultural contexts and that it is constantly being translated and reformulated both at the periphery (at the grassroots level) and the center (UN Human Rights institutions), and, indeed, even has been forced to move from charisma to bureaucracy. Thus, Sally Engle Merry’s concept of vernacularization, on which Seyla Benhabib builds, could be seen as congenial to my project here. All too often, in presenting this chapter to human rights activists, however, I have encountered a common objection resting on the continued assumption that the human rights project, in order to succeed, needs to retain its transcendent language and that, indeed, this is the best strategy in appealing to religious leaders.

III The Human As Sacred: Creation of Humans in the Image of God

One can hardly imagine a more powerful religious image for philosophy to “salvage” from religion for its own political projects than the creation of humans in the image of God. Contemporary thinkers about human rights such as Michael Perry, Robert Dahl, Jeremy Waldron, and Max Stackhouse have all invoked the sacredness of humans, in different ways, to support human rights. In Stackhouse’s succinct phrasing, human beings possess “a divinely endowed core that is the ultimate basis for the right to have rights.”²⁸ The intuition that at the base of modern concepts of human equality and human rights is the sense of human sacredness is reflected in the invocation of creation in the image in the American Declaration of Independence and Lincoln’s Gettysburg Address, of course, but even a self-conscious theorist such as Ronald Dworkin invokes this language – human life is sacred – without providing formal justification.²⁹ As George Fletcher argued, a coherent formal philosophical justification for equality has proved quite elusive while holistic arguments (for him, Kant coupled with the Hebrew Bible) are far more successful.³⁰

The translation of biblical themes through Christianity into political thought is a process that bypasses the rabbinic tradition in Judaism, however. And, within the rabbinic legal tradition, by contrast, creation in the image of God occupies a relatively negligible role. It is worth first understanding why this is so before taking up the question whether, freed from the diasporic setting of much of the rabbinic tradition, the principle could be more dynamically elaborated to meet present intuitions and the contemporary needs of a Jewish state.

Certainly, from the perspective of the rabbinic tradition, the creation of humans in God’s image implies that humanity has special worth that distinguishes humanity from other creatures. Creation in the image may even embody an ethical ideal of social harmony between the diverse members of humankind – one that the prophets envision as the goal of the end of days. But, even in the biblical portrayal, humanity is not intended to be a universal human order, ‘one fellowship and societie,’ as Locke wrote.³¹ The Tower of Babel, after all, is the closest analogue to a biblical image of world government. In his biblical commentary, the Netziv portrays it as the panopticon. The biblical remedy is the division of humanity into collectivities, each with their distinct language and identity.

Creation in the image of God is rather the beginning of the unfolding in biblical and especially rabbinic thought of a drama of hierarchy, distinction, and difference that moves from humanity to Noahide (i.e., civilized) society; to the political community of resident strangers and Jews; to the congregation of Israel charged with becoming “a holy nation of priests”; and, then, to the community of fellows, which at least in theory, excludes rebellious Jewish sinners.³²

The rabbinic tradition reveals two opposing tendencies: one emphasizing the particular dimension of Judaism, and the other, the universal. The first tendency countenances discrimination against others by reserving thick obligations of social solidarity for fellow Jews. Confining obligations of social solidarity and even equal juridical rights to Jews can be understood from several perspectives. First, Jewish tradition draws a sharp line between monotheists and non-Jewish idolators. Jews are forbidden to associate with or extend civil rights to those who practice idolatry, which symbolizes in the Bible moral corruption. Second, from a communitarian standpoint, confining positive obligations of social solidarity and fellowship to Jews creates a strong sense of community and Jewish peoplehood. The more universal strain within rabbinic thought attempts to expand the circle of solidarity by imposing duties of fellowship based on factors other than Jewish membership, such as sharing political space or moral values.³³ The Talmudic rabbis mediated between these two poles essentially by upholding rules banning fellowship with idolators while also articulating certain principles, chief among them darkhei shalom, “pursuing paths of peace,” which obligated Jews to extend social solidarity to idolatrous neighbors with whom they shared political space. It remained unclear, however, whether “pursuing paths of peace,” was an ethical principle grounded in notions of equal human dignity or a pragmatic policy aimed at appeasing hostile neighbors, given the precarious situation of Jews as a minority within a larger pagan space. The protracted period of isolation, persecution, and disenfranchisement of Jews hardly created a context in which to develop the universalist strains within the tradition and even so potentially powerful a concept as creation in the image received scant attention.

As a halakhic category, man’s creation in the divine image is invoked to justify the intrinsic equal value of human life,³⁴ the duty to procreate,³⁵ and the respect owed to the human body – even to the corpse of a killer. All these invocations are limited to physical matters, raising the question how the rabbis understood the similitude between man and God. Concentrating on the tannaite layer, Yair Lorberbaum has argued that a school of early rabbis understood the notion as expressing an iconic relationship between man and God.³⁶ In some sense, according to this school, man is an ontological extension of God – a view consonant with philosophical and ethical notions of the time. The consequences of this viewpoint, he argues, were played out primarily in the domain of criminal or judicial taking of life.

Ontological conceptions of creation in the image are hard to enlist in the service of ethical or moral theories about human rights; indeed, they can lead in quite the opposite direction, as evidenced by the persistent strain of rabbinic thought that often seeks to restrict the ambit of creation in the divine image to Jews.³⁷ This problem resurfaces in the contemporary application of creation in the divine image as a halakhic category in connection with the question whether autopsies done for the advancement of medicine are permissible. In contrast to Rabbi Uziel, who equates all humans in the matter of respect for the dead,³⁸ Rabbi Kook rules that such autopsies may be conducted only on non-Jews. He comments: “The prohibition of desecrating a corpse is derived from the divine image in man, which is unique to Israel in its greater sharpness as a result of the sanctity demanded by the Torah.”³⁹ Rabbi Kook’s romantic and idealistic tendency, and the role played in his rulings of the concept of the special sanctity of the Jewish people, is well known.⁴⁰ In this ruling, Rabbi Kook notes the unique sanctity of the body of Jews who are charged with ritual commandments such as kashruth that fashion the body’s sanctity.

It is an interesting question whether beneath the “conceptual and metaphysical garb” an “existential truth” regarding humans as sacred can still be rescued that is both consistent with the general rabbinic schema and does work in a larger secular context.⁴¹ As Shlomo Fischer points out, an ontological conception also emphasizes “the external source of the sacred value of human beings. The concern is for a God who is ‘present’ in the human being, a Being who is totally outside the immanent human world.” Even translated into the language of ethics, the perspective is distinctly heteronymous. “The value of humans lies in their subjection to commandments; it cannot anchor absolute human value in the immanent human being or in some human characteristic such as autonomy or the ability to self-legislate.”⁴² In short, the concept challenges, as much as it affirms, received notions of human rights.

Of course, the remarkable under-elaboration of this concept in halakhic thought also has much to do with lack of historical need or opportunity. The dynamic elaboration of principles such as creation in the image or the dignity principle, k’vod habriyyot, or pursuing paths of peace, darkehi shalom, and even the possibility of generating new norms from them, is precisely what this collection of chapters is in part designed to explore.⁴³ And it should be noted that Rabbi Kook does not, strictly speaking, limit the concept of creation in the image to Jews. Instead, he writes that Jews are, as it were, “more fully in the image” than non-Jews as a result of the sanctity bestowed by the Torah’s ritual commandments. Although hardly promising at first blush, it is interesting that Kook treats creation in the divine image more as a comparative concept, a matter of degree. Jews are more fully in the image than non-Jews because they perform more commandments. In this view, the concept of creation in the image is a statement about the potential of humans to perfect themselves through observance of the law. It is a theory about human potentiality to become full moral and legal subjects through their actions.

The conceptual link between human creation in the divine image and human equality seems as follows: All humans are born equal in their capacity to become full moral and legal subjects and perfect themselves. When humans sufficiently realize their potential, they become rights holders under Jewish law. But when has this potential been sufficiently realized? Rabbi Kook, in emphasizing the ontological aspects of the ritual commandments, implies that only full observance of Torah suffices. But other stopping points short of conversion might be posited. The Me’iri ruled, for example, that juridical equality is owed to the non-Jews of his time, because they are members of nations under the rule of their religious law. According to the Me’iri, societies bound by religious law occupy an intermediate category between idolaters of old and Jews. Such societies have critically progressed toward perfection.⁴⁴ Their final perfection, he writes, is conversion. Yet, those within the intermediate category are entitled to juridical equality. The critical question, then, is what makes a person or a society ethical or just so as to merit juridical equality under Jewish law: observance of the entirety of Torah, observance of Noahide commandments, or the empirically observed creation of a just and decent society committed to the rule of law?

Thus, some concept of desert, and not the possession of rights by virtue of being a human as such, seems implicit in the traditional Jewish conception of the idea of creation in the image.

In one of the more creative contemporary rabbinic attempts to grapple with human rights, this comes to the fore. The specific problem that Rabbi Hayyim David HaLevi addresses – the rights of non-Jews in the Jewish State to enjoy equal citizenship rights and social solidarity within Israeli society – is all too topical. The issue is not about the content of Israeli (secular) law; rather, he is addressing whether obligations of social solidarity extend to all citizens within the state, pursuant to Jewish religious norms. HaLevi argues that the right of self-determination granted to Jews by the international community not only creates moral constraints on the exercise of Jewish majority rule; it triggers a new moral obligation of human solidarity only hinted at before in Jewish teachings.

Jewish sovereignty creates the condition for Rabbi HaLevi to develop this ethical universal strain. But how precisely does the fact of Jewish sovereignty create this perspectival switch? This question is all the more puzzling, given prevalent modern understandings of sovereignty. The Hobbesian conception of territorial sovereignty is concerned with legitimacy. Legitimate power over a defined territory is transformed into a centralized system of positive law. Morality and conscience may be equally obligatory domains, but they are political sovereignty’s rivals. Thus, modern centralizing conceptions of sovereignty, coupled with the positivist separation of law and the legitimate exercise of power from morality, structures a certain relationship between sovereignty and ethics in which moral obligations arise from other domains of life but are not a consequence of sovereignty itself.

True, the social contract basis of democratic sovereignty is understood to create a political obligation on the part of the sovereign to treat all citizens equally. One could therefore easily understand Halevy as asserting that the constitution of Israel as a democratic state, and the new reality of Jews holding sovereign power over others, obligates the State to treat all its citizens equally. Halevy certainly so states. But this simple reading of the text still leaves unanswered, first, how the constitution of Israel as a democratic state is somehow halakhically obligating and, second, why individual Jews in civil society now owe a moral obligation of social solidarity to fellow non-Jewish citizens. The key to resolving this puzzle, in my view, lies in noting that Halevy offers a very different conception of Jewish sovereignty in the State of Israel than the one so prevalent in current statist, centralizing imaginations of sovereignty.

Because a variety of halakhic issues turn on the absence or presence of Jewish sovereignty, rabbinic jurists were forced to conceptualize whether the State of Israel was a manifestation of Jewish sovereignty in the halakhic sense. For in determining the applicability of various halakhic norms and the relevance of different possible analogies, halakhic decisors must first characterize the age or phenomenon under question. In the course of doing so, several rabbinic jurists, most prominently Halevy and also R. Herzog, proposed new conceptions of Jewish sovereignty.

The question arose primarily in the context of group relations – Jews and non-Jews – as a result of Maimonidean halakhic writings about the legal norms applicable when Jews have “the upper hand.” As is well known, Maimonides held that the distinction between the unredeemed world and the messianic age is freedom from the subjugation of foreign sovereigns. Talmudic tradition bequeathed a binary model that distinguishes between the days when Israel holds sway over other nations, implying exclusive or absolute dominion, or alternatively when it is powerless and suffering. Various halakhic norms – conquest, conversion, group relations, etc., – theoretically turn on this distinction. Thus Maimonides seems to hold that there will be no converts in the messianic age of Jewish sovereignty because the motivation for conversion could be instrumental: the attraction to power. Therefore, “in these days” converts must be instructed that Jews have no political agency and are suffering.⁴⁵

The laws Maimonides codifies as part of his vision of the time of the upper hand are a vivid example of the ontology of sovereignty: the dedication of the king to the project of the perfection of the people. Maimonides repeatedly refers to the ummah or am and ascribes to the king the task of bringing the nation to political perfection. This requires purging the land of idolators and, read straightforwardly, drastically restricting the rights of non-Jewish residents.

Is Jewish sovereignty in the modern State of Israel equivalent to the Maimonidean age of the “upper hand” that is the condition precedent of the codified Maimonidean laws? Halevy and Herzog quickly dispel this illusion, each in subtly different ways, but there is one common thread: Jewish sovereignty in the State of Israel came into being through an act of recognition by the United Nations and therefore the State of Israel’s sovereignty is not only limited, it is shared.

R. Herzog is most explicit on this point. His analogy of Israel to a corporation or business partnership between Jews and non-Jews seems, at first blush, comical but it reflects a conceptual commitment to thinking about sovereignty in terms of state interdependence. R. Halevy is even more explicit: Israel was recognized as a Western democratic country and so Jewish sovereign power is limited by that principle. Halevy writes: “In the Western democratic world, to which we belong, society is founded upon equal rights for every person; there is no place in a democratic state for religious discrimination. Even were we a superpower, we could not practice such [discrimination].”⁴⁶ Halevy is claiming that Israel “belongs” to the Western world because it was brought into being by the United Nations no less than by Jewish efforts. For Halevy and Herzog this is nonetheless a genuine form of Jewish sovereignty, sufficient to penetrate into the normative sphere of halakha. For example, it is sufficient to trigger a halakhic obligation to recite the Prayer of Thanksgiving on Independence Day. By contrast, R. Ovadiah Yosef, though he held by and large a positive view of the state, ruled against reciting that prayer because he did not recognize the state as falling within a halakhic category of Jewish sovereignty.

Both Halevy and Herzog seem to have been operating from within a larger cultural understanding of sovereignty in their time that still is attested to in Israel’s Declaration of Independence. The shared assumption of the period was that the legitimacy of the state depended on recognition. Halevy goes a critical step further, however, in understanding recognition not merely as the ratification of an existing state of affairs but, instead, as constitutive of sovereignty. Recognition not only confers legitimacy on the state, it endows the state with its very identity.

This point warrants elaboration. There is a longstanding debate in international relations between the practice of recognition among states and the condition of statehood. While some theorists insist that states are states prior to their recognition as such, others argue that the recognition of a state is a constitutive act: it brings statehood into existence. The debate, as Patchen Markell has helpfully observed, captures the two senses of the term recognition. In the first, recognition is an awareness of a pre-existing state of affairs, of a status that already really exists. In the second view, recognition is an act that brings something new into being or transforms the world in some way.⁴⁷

The different senses of recognition, Markell goes on to argue, trade on differing conceptions of self-determination and political agency. Zionism (and the view incorporated in Israel’s Declaration of Independence), by and large, relies on the political imagination of the first sense of recognition. International acceptance ratified a pre-existing state of affairs: the national-collective will and identity of the Jewish people. But, pursuant to the constitutive sense of recognition, neither sovereignty nor political identity is the product of a singular will nor self-determination in its fullest sense.

It is this new relationship between Jews and the world that underlies Halevy’s attempt to ground social solidarity in a principle “only hinted at before in Jewish teachings” – the creation of humans in the image of God. The “new reality of Israel,” to which Halevy refers, is a new age of recognition by non-Jews of the humanity (and, hence, political agency) of Jews and not solely or even primarily the new reality that Jews are now a majority ruling over a minority. The question could have been framed within older talmudic paradigms addressing obligations of social solidarity in a mixed society – “pursuing paths of peace” could serve as a ready answer, for example. HaLevi refuses to follow this easy route. “Darkhei shalom,” he insists, is a diasporic concept; it is only suitable to Jewish life as a minority population. Instead, Halevy insists that Jewish sovereignty demands a radical change in the mindset of Jews toward the world and that awareness of the new reality must penetrate the halakhic normative sphere. The exilic mindset requires alteration so that “we visit the gentile sick, bury their dead, and comfort their mourners out of a moral, human duty, not merely because of the ‘ways of peace.’”

HaLevi insists that the source of this obligation is not contractual or conventional; it is a moral obligation rooted in the concept of a shared humanity. At the same time, HaLevi implies, one could not truly speak of a shared humanity before, given centuries of persecution and Jewish disenfranchisement. Now, with the recognition of Jewish sovereignty, HaLevi suggests, the immense distinction between Jew and non-Jew finally has been lessened. Consequently, Jews have a human moral duty to recognize the full humanity of others.

It is important to note the halakhic significance HaLevi assigns to the world’s recognition of the political rights of Jews. It is equally important to note that this is the arena of reciprocity and exchange, not of transcendence, the moral absolute, or the sacred. The moral obligation Jews owe to the other – and to one another – is based on ethical reciprocity, norms of mutuality, moral symmetry, and gratitude. In retrospect, it is the principle of reciprocity that may also underlie prior rulings extending solidarity beyond Jewish borders. HaMeiri, whom HaLevi cites, reinterpreted Talmudic rules permitting discrimination as confined to idolators who are not “restricted by the ways of religion.” The nations who are under the sway of religion, Meiri implies, adhere to basic norms of morality that govern their behavior toward those with whom they share political space. Jews have a moral duty, in turn, to reciprocate.

The universal ideal of human solidarity that HaLevi draws out of Jewish teaching thus differs in an important respect from the core notion of Western human rights discourse: Rights are not absolute or inherent; they are not inviolable and they do not inhere in the human as such. Nor is HaLevi invoking sympathy, pity, or love for the other, irrespective of their actions or capacities for doing evil. A more fruitful comparison is to the political conceptions of rights and evocation of reciprocity made by John Rawls in his Theory of Justice. There, Rawls draws on principles of moral psychology, following Piaget, to argue that the sense of justice grows out of prior stages: first the morality of authority based on reciprocal love between parent and child and then the morality of association based on friendship.⁴⁸ “Because we recognize that they wish us well, we care for their well-being in return … The basic idea is one of reciprocity, a tendency to answer in kind.”⁴⁹ Genuine other-regard depends on receiving benefits, inaugurating the play of gratitude and indebtedness. Rawls extends this to those who have only the potential to reciprocate; but there is a close connection between Rawls’ invocation of a well-ordered society and the reasonableness of expecting benefits and therefore extending respect to those who only have the potential to reciprocate. HaLevi combines these notions: a well-ordered society is presupposed. “These are not the idolators of ancient times.” Given tangible evidence of an ordered society – “they have wished us well” – a moral duty of equal concern and respect is created.

The line of thought HaLevi develops is a disavowal of any shared vision of the human as such as sacred but it captures the more modest notion of a regime of rights based on the play of recognition and exchange. As Adam Seligman writes:

The world of the sacred and of religious authority is, by definition, a world marked off from the play of negotiation and exchange within which social order is defined. The sacred is that which is ineluctably Other, that which cannot be grasped, bartered, or exchanged. Its dictates impose obligations that are simply of a different order of experience, that involve totally different domain assumptions than those encompassed by the play of reciprocity and autonomy on which a regime of rights is based.⁵⁰

IV From the Absolute Universal to International Convention and Transnational Consensus

Since Kant, we tend to reflexively endow the universal realm with transcendent status and grant priority to the universal over the particular. But the universal was once conceived as a common or shared realm, expressing a kind of consensus gentium. Recently, Jack Donnelly, among others, has urged a return to this more modest conception of human rights.⁵¹

If we were to approach human rights in this way, the question becomes whether Judaism gives weight, as a matter of the religion’s internal viewpoint, to world consensus. In other words, would the Jewish tradition defer to the international legal regime of human rights or to an emerging translational understanding of global norms, including informal ones, just in virtue of consensus?⁵²

This strategy of convergence between religion and human rights depends on retrieving the idea of human rights as a purely political discourse and emphasizing its legal forms by which immunities and liberties are inscribed as rights (e.g., the international legal regime of human rights), as well as “soft” or informal law, without recourse to the philosophy of the person and society with which human rights discourse has been entangled.⁵³ There need be no agreement between Judaism and human rights discourse on the content of the core principles of human rights – even a fine one. Deference, rather, would be based on second order reasons, such as tacit or hypothetical consent and possibly a certain moral – or religious – claim that consensus in itself makes on us.⁵⁴

These notions, it turns out, are quite deeply embedded in the Jewish tradition. I am now only beginning in a project of surveying halakhic attitudes to international law and global governance that will focus on the writings of R. Hayyim Hirschenssohn, who argued that the halakhic obligation of keeping “covenants” extends to international conventions and global agreements, whether formal or informal. These agreements need not be state-based; they can be embedded in global society and may even override halakha. The importance of consensus and custom also find expression in a variety of standard halakhic doctrines, such as dina de-malkhuta dina (“The law of the kingdom is the law”); minhag Yisrael din hu (“the custom of Israel is the law”), etc. Through these doctrines, contemporary practices of the people were incorporated into the halakhic system and translated into norms. These practices usually pertained to private law or fiscal matters, and parties are permitted to vary Jewish private law by contract, in any event. With the rise of the State of Israel, Jewish contemporary practice includes matters of public law, such as practices of war, statecraft, and the shaping of civil society. These practices pertaining to public law are absorbed from the larger environment: that is, the “family of nations.” Recall HaLevi’s statement: “In the Western democratic world, to which we (i.e., Jews in the State of Israel) belong, society is founded upon equal rights for every person.” In other words, the environment of the State of Israel is the Western democratic world and its norms.

Still, incorporating norms generated from outside the halakhic world into the halakhic system raises a number of deep and complex issues, chief among them the question of limits. Contemporary responsa even in the area of private law well illustrate the dilemma. Thus, some rabbinic decisors have held that contemporary practices such as gender equality in splitting marital assets, meet the technical requirements of incorporation doctrines such as dina de-malkhuta dina and “customs of the people;”⁵⁵while others contend that laws stemming from a “worldview” or a “religious or social ideology” cannot be incorporated because the “religious and social worldview of the Jewish people derives exclusively from the Torah.”⁵⁶ To put it starkly, if the Declaration of Human Rights is absorbed into the halakhic system as the norm of the family of nations to which the State of Israel belongs, the halakhic tradition would no longer serve as a resource for contributing to a critique of contemporary politics, including human rights discourse itself. Instead, the halakha would be confined primarily to the ethico-spiritual realm; its political dimension would simply parallel that of the law of nations. What, then, is the role of the Jewish religion and the halakha in shaping a specifically Jewish politics as an expression of Jewish religious ideals and identity?

I have dealt with these questions at length elsewhere and will only summarize here one fascinating line of thought supporting halakhic incorporation of the international legal regime of human rights in virtue of world consensus. Whether such deference to the international regime of human rights is halakhically permissible or even obligatory touches on a large and, at times, highly technical debate within Judaism concerning the status and contours of its doctrine of universal law, the Noahide Code. Put highly schematically, the claim is that international law and consensus are binding on Jews through the complex interaction of Noahide law with the Talmudic principle, “the law of the kingdom is the law.” While Noahide law is ordinarily thought of as the universal moral law that God gave to humanity – superseded at Sinai for Jews – in fact, the relationship of Noahide law to Jewish obligations is far more complex. Noahide law can be seen, or so I have argued at length elsewhere, as an alternative source of norms even in a purely internal Jewish context, a form of fallback or residual law, which can be invoked when the particular law requires supplementation or functional adjustment.⁵⁷

Paradoxically, although Noahide law is presented as a universal moral code given by God, the content of which is discerned and elaborated by Jewish tradition, it is sometimes the case that the content of Noahide law is essentially determined by the convention of the nations.

An analogous claim was, indeed, made by Rabbi Shaul Yisraeli, in a different – and highly politically charged – context when he ruled that the Jewish state was obligated by – and only by – international standards of war.⁵⁸ Rabbi Yisraeli based his view that the rules of war are those agreed to by the global community of nations on two legs. The first is that war is a part of statecraft – an activity committed to the Jewish king and its successor institutions such as the modern Jewish state. He cites Deuteronomy 17:14, in which the people ask for a king “like all the nations.” And he couples this with the view, most clearly articulated by the Netziv in the nineteenth century, that war is a universal activity permitted to all societies and therefore should be waged by universal rules.

Deuteronomy 17:14 is ordinarily not viewed as a legal source. R. Yisraeli, it seems, is compressing a long tradition of legal and political discourse about Jewish kingship. To grasp both the inner logic at work here and the ethical and identity dilemmas they raise requires a bit of a detour through halakhic discourse about the status and validity of conventional government. I have dealt with this issue at length elsewhere and will only summarize the contours of the argument here.⁵⁹

Within Judaism, there are a variety of doctrines that roughly correspond to a division between religious and political spheres. Several were developed in tandem with Islam and Christianity in the twelfth and thirteenth centuries along with the emergence of criminal law as public rather than religious law. Biblical evidentiary restrictions on conviction were jettisoned by all three religions, and various justifications emerged for the assignment of certain extralegal powers to political authorities who were not restrained by religious law. Far from positing a total society, unified under one sacral law, several medieval Jewish legal thinkers imagined the halakha as composed of different jurisdictions generating law in accordance with different principles. The political realm emerges in these writings as a space with its own distinct logic and laws.

The medieval Jewish discussion centers on the rights of monarchs, including the prerogatives of the “Jewish king,” and is revived in modern halakhic discussions of the legitimacy of the law of the state, including a Jewish state. The Hebrew Bible sets up a tension between a model of kingship that is particular and culturally specific and one that is universal. That tension is fully exploited in the medieval discussion. Whether kingship is a realm of politics, discretion, and wisdom, or a realm of distinctive law, is a large and lingering question. Maimonides’ codification of the laws of Jewish kings seems to transfer over to the Jewish king a separate body of Talmudic law about the universal “Noahide” laws that bind non-Jewish societies, from the Jewish perspective.⁶⁰ In addition to six substantive commands – exemplifying a civilized political community, such as prohibitions on murder, theft, and the like – Noahide law includes a seventh command of justice, dinin. For Maimonides, dinin is nothing but the requirement to establish governmental structures capable of preserving order by punishing violations of the other Noahide laws. As Gerald Blidstien noted, “Maimonides’ entire edifice of monarchic powers identified Jewish and gentile governance as a single structure possessing similar goals and utilizing similar instruments.”⁶¹

The most far-reaching articulation of Jewish kingship as social order is that of Rabbi Nissim Gerondi who posits a central gap in the Halakha: the lack of conventional modes of governance able to preserve social order. Yet, the Torah itself provides the means for correcting this deficiency: monarchical powers. The monarch is merely the site of social order historically chosen by the people who may consent to another institutional form if they so desire. Although Gerondi is largely silent on whether this is a space of discretion or law and whether there are any inherent limits, I believe we can read him against the background of his predecessors and contemporaries as at the least implicitly incorporating the conventional rules of non-Jewish societies, insofar as they relate to matters of enforcing social order.

This underlying concept – that government, the task of which is the preservation of social order, is a universal Noahide norm incumbent on all societies, Jewish and non-Jewish alike and in more or less the same way – also underlies Rabbi Yisraeli’s approach to war. Thus, Rabbi Yisraeli relies on prior precedent holding that war is not only permitted to non-Jewish societies but that it is a logical outgrowth of the Noahide command of dinin, because war in present times is a means to reduce social conflict and therefore to preserve social order. And the War Convention sets the limits of what is permissible. Thus, the link between Noahide law as a universal body of norms that was Jewishly discerned and elaborated and accordingly subject to internal standards of some sort – Judaism’s contribution to discourse about human rights as a moral theory – becomes reversed. Now at least this one Noahide law is imagined as the tacitly agreed upon practices of conventional societies in pursuit of good governance.

The second leg of Rabbi Yisraeli’s opinion relies on a more familiar halakhic principle: dina de-malkhuta dina (the law of the kingdom is the law, henceforward DDM), but he gave it a radically innovative meaning. Where formerly the dictum governed the obligations and privileges of individual Jews relative to their host states, in the elaboration by Yisraeli, it now governs the obligations and privileges of the Jewish nation acting in the international context. And where formerly, the dictum extended only to the laws of a sovereign ruler, such as king or state, here it extends to international law on the theory that the non-Jewish kingdom could be defined in global terms, as long as the collective will of the world’s citizens ratified the global kingdom’s law. (The perspective is quite similar to that of current United States Supreme Court jurisprudence holding that the convention and customs of the nations is incorporated into federal law.)

DDM is first articulated in the context of the power of foreign rulers to tax and expropriate land and eventually became a cornerstone for the successful integration of the formerly legally autonomous Jewish communities into the legal systems of the nation-state. Paradoxically, the principle originally served to make the halakha fully functional in exile but then the postulate took on a life of its own as the jurists began to theorize in the Middle Ages about its conceptual basis. The most prevalent conceptual base is one or another version of consent theory. Rashi, interestingly, connects the principle to Noahide law. He explains the Talmudic permission to Jewish litigants in an intra-Jewish dispute to take advantage of non-Jewish methods of validating deeds as resting on the notion that non-Jews are commanded to “institute justice” – citing the Noahide norm of dinim. Accordingly, they can be effective agents for all matters subsumed under that command. Recall that, from the internal perspective of rabbinic Judaism, this command obligates humanity to preserve social order by enacting systems of law. Accordingly, non-Jewish legal activity can serve here as an alternative norm even for Jews and even when it is at variance with Jewish law. The implication of Rashi’s rationale is that large portions of the halakha are in fact replaceable by foreign law, thus shrinking the scope of halakha to matters of ritual and religious prohibition (including marriage and divorce).⁶²

Yisraeli’s opinion about the binding nature of international law seems to blend the underlying rationales of the consent school and of Rashi’s turn to Noahide dinim. Jews can consent to be governed by international norms, just as they can consent to be governed by the civil laws of host states. Consent to laws pertaining to war is legitimate even though war involves the religious prohibition of bloodshed. War, however, is a chosen means to settle disputes in contemporary life and, as such, fulfills the goal of civilizing the world and securing social order, even if such wars are not undertaken for the sake of enforcing Noahide norms.

The laws of the Jewish king, the principle that the “the law of the kingdom is law,” and the Noahide command of justice thus become all facets of a single concept. Still, the very existence of a “universal” code within a particular legal system has opened a deep fissure in Jewish thought. If Noahide law is God-sanctioned, what precisely is the point of the particular laws given later at Sinai? The various eighteenth- and nineteenth-century debates within Judaism about the modern state, from that of the Reformers to Mendelssohn, are in part attempts to answer that question.

Gerondi, too, anticipates this issue. For, in the course of outlining the Jewish king’s powers, he addresses the purpose of the halakha’s highly nonconventional system of order, as reflected in its criminal procedures. Certain biblical laws, such as judging in accordance with two witnesses, he argues, were never intended as a practical means to govern society. Rather, they are intended to bring on the divine effluence and to judge individuals in a manner exquisitely attuned to the rights of individual defendants without regard to social need. Gerondi is working off earlier rabbinic sources as well as extending the doctrine of Noahide law to one logical conclusion. He is following, as Blidstein pointed out, Yehuda Halevi, who wrote about “the social – ethical law given to humanity (i.e., Noahide law) to which the spiritual-ceremonial law is added at Sinai,” and decisively splitting the two into the realm of the sacred and particular, where true justice is possible, as opposed to the realm of the profane and universal, where the needs of society are irreconcilable with the rights of individuals.

As we know from modern Jewish history, the coexistence of universal and particular elements in one tradition led to an internal splitting of the tradition along lines generally analogous to the modern differentiation of political and religious realms. Increasingly, the particular laws given exclusively for Jews at Sinai becomes seen as religion or ethics, even from an internal standpoint – and not only from the standpoint of the host nation-states in which Judaism later was set.

Modern separation or differentiation of realms not only allows different realms of human experience to proceed in accordance with different conceptual logics. It also provides a means for one realm or activity to critique the other. This is the most powerful claim of modern positivism’s separation thesis: by differentiating between law and morality, strong moral critique of modern law is made possible. One of the more interesting questions for those observing the Jewish tradition today revolves around this issue of critique. What resources should or could the tradition use to critique the organization of the contemporary political sphere, including the discourse of human rights? Keen observers of the tradition will note that, outside the State of Israel (which presents a unique set of problems), the standards used to judge the political sphere are not, by and large, the particular religious or ethical aspirational norms of the Jewish tradition but, rather, they draw on the large body of Jewish sources which develop the universal Noahide Code. That body of law is in itself an ongoing project that develops in tandem with developments in the larger political sphere. For example, while the original markers of good government in the service of religion from the Talmudic period through the medieval period cite the Noahide ban on idolatry and blasphemy, over time, these criteria are reinterpreted to fit a secular age. Thus, the ban on idolatry is in the process of reinterpretation in terms of commitment to the rule of law. In short, the tradition continues to provide a standpoint from which to judge the very space it authorizes. In doing so, we can catch a glimpse of what – in the eyes of Judaism – is a well-ordered political space and what is, instead, seen as inimical to the common project of government.

It is here that Yisraeli’s turn to the international legal regime is most vulnerable, for it entails abandonment of any standpoint from which criticism is possible. International codes of war, treaties, and so on, govern the state of Israel – from the halakhic perspective – and not indigenous, national-collective norms or particular, aspirational norms developed to govern relations of members within a covenantal community. In his analysis, Yisraeli makes clear that halakhic norms pertaining to use of force developed within the context of individual self-defense could not countenance the manner of conducting warfare acceptable within the international community. But rather than view halakha as a ground for ethical critique, he sees halakha as allowing the incorporation of looser standards of behavior when the nation acts beyond its borders. Should international society adopt more stringent norms than halakha, these too would be binding on the nation acting in the international arena. The Jewish nation-state is no longer modeled on a concept of exceptionalism; instead, it is merely a member of international society whose norms should converge.

Rabbi Yisraeli’s position was re-examined recently in two American symposia on the topic of Jewish law and war. The responses it invoked are telling. Even those thinkers who are sympathetic to the idea that the laws of the Jewish king and Noahide law bear a “family resemblance” were deeply troubled both by the complete “surrender to comparative law” and by “the suspension of the normative ethics of Jewish law.” The gist of both objections is that in turning to international law, Yisraeli left no standard for ethical critique or reason to contribute a distinctively Jewish ethical voice to society at large. What is at stake is both the role of the halakha as a resource for ethical thought (without necessarily a modifier) as well as the role of traditional Jewish sources, developed from within, in shaping a particular Jewish character and sensibility and providing an aspirational set of norms or set of superoragatories. In short, what is at stake is not only the status of halakha as an ethics, and not solely autonomous law, but also identity and exceptionalism, of carving out rules – even in heart of the political realm such as warfare – that reflect particularist ideals even if not adhered to by the rest of the world.

These internal debates about politics as a shared, universal realm of experience, about the Jewish tradition as a resource for ethical critique, and about Jewish identity, also shed light on the place of human rights discourse in contemporary Jewish Orthodox society. I do not need to belabor certain trends in the discourse of traditional Judaism, especially in Israel: increased ethnocentrism and the rise of romantic, utopian strains of religion emphasizing authenticity. Not that long ago, it was common to debate how coterminous halakha was with ethics and whether there was an equally obligatory ethic independent of halakha – and these debates were not confined to rarified academic or intellectual circles. Pursuant to that conception, human rights as an ethical theory need not always be elaborated from within; it could be obligatory independent of halakha. Now there is an increasing tendency to view halakha as comprehensive and all-encompassing, in which all rights and obligations, including political ones, must be generated exclusively from within a single sacral framework that emphasizes only one pole of biblical and rabbinic thought: the particular. At its most extreme, the sacred is perceived as the holy, in the face of which the norms of general society are irrelevant. The subject of religion and human rights is an occasion not only to resuscitate the question of the independence of ethics, but also to reflect on the reservoir of Jewish sources that speak to the other pole of biblical and rabbinic thought: the universal.

3 Sovereign Imaginaries Visualizing the Sacred Foundation of Law’s Authority

Richard K. Sherwin

But reason and science have always performed, and still perform, only an auxiliary function in the life of peoples, and it will be like that till the end of time. Nations are formed and moved by some other force whose origin is unknown and unaccountable … ¹

To be interested in thinking how we learn about thinking is a condition for politics (including ethics), theology, and metaphysics alike.²

I Introduction: Sacred Foundations

If a world is to be lived in, it must be founded.³ This foundational function belongs to the sovereign imagination. What a polity names as sovereign in the state of exception, when the sacred irrupts anew, is a matter of individual and collective responsibility. In this dispensation, law, politics, and religion become inescapably entangled in metaphysics. It behooves us to understand the nature and consequences of this state of affairs.

Throughout history the human mind has sought knowledge from the beginning of things. Mircea Eliade used the phrase “Illud Tempus,” the beginning time, to describe “the stupendous instant in which a reality was created.”⁴ This is the moment at which foundational narratives call into being a nomos, a living legal reality, the emergence of a world. The beginning time marks the time of the sacred – that uncanny source of immeasurable abundance out of which a world of meaning emerges. Rudolf Otto called it the “numinous.” Standing before the numinous as it shimmers in a place, a text, or an image, we sense a strange excess, the presence of something immanent, as yet unseen in the visible world. The numinous radiates an inexpressible intensity. We shudder in wonder, or terror, at its absolute otherness.⁵ The Event of the sacred calls out to us – for naming.

One senses in the sacred, for both law and religion, a curious bond between the bounded and the boundless. As the great American poet Wallace Stevens wrote: “A violent order is disorder; and a great disorder is an order. These two things are one.”⁶

On the threshold of that impossible polarity, it is as if (to cite another of Stevens’ lines) “an inhuman order” sounds on the evening air, as if a singer’s song were “fluttering its empty sleeves,” making a place for being – there, in the song the singer sings – even as the threshold on which we stand to hear it comes no closer to its source: for the song makes the sky “acutest at its vanishing.”⁷ That vanishing point marks the threshold of the sacred.

In law, the paradox of form and spirit, order and disorder, structure and anti-structure, arises under the rubric of sovereignty. Sovereignty directs us to an ultimate authority for law that lies outside law itself. As Harold Berman has written: “Law – in all societies – derives its authority from something outside itself.”⁸ Or as Jacques Derrida more recently put it: “The positing or establishing of law or right are exceptional and are in themselves neither legal nor properly juridical.”⁹

As the concept of sovereignty emerged in the sixteenth century, it came to describe the absolute power of the ruler of the state. This power was generally thought to reside in the office of the king,¹⁰ but it also could be held by the nobility, or the people.¹¹ Regardless of where its power lay, however, sovereignty was conceived as indivisible, absolute, unlimited. In this sense, it transcended positive (or written) law as such.¹² To command in the name of the state without the authority of the sovereign lacks legitimacy. If such a state of affairs were to persist, the rottenness at the core of things would fester and spread, and the state ultimately would most likely fail.¹³

To be sure, positive rules may generate and sustain valid legal systems. Rules demand obedience. To this extent, the power of the state is on their side. But extralegal values and beliefs aligned with a sovereign source of authority go beyond formal validity. What is sovereign renders law legitimate. Higher values and beliefs inspire acceptance of the rules of law as “right” and “good.” This sense of “rightness” goes beyond fear of disobedience as a basis for accepting law’s commands. In this sense, the legitimacy that comes with higher values transmutes validity (based on fear of “the gunman writ large,” as legal positivist H. L. A. Hart put it)¹⁴ into moral significance (law’s rightful authority as a warrant for respectful acceptance). In short, with legitimacy comes belief, and from belief comes fidelity to the rule of law.¹⁵

In a reflection on Kafka’s modern parable, “Before the Law,” Gershom Scholem once noted that under conditions of “validity without significance” legitimacy becomes but a rumor.¹⁶ For Scholem, this encounter with the dead spirit of the law describes the nothingness of revelation, the zero point of law and politics, a legal space in which the Nothing appears. This begins to describe the metaphysics of nihilism, a topic to which we will return.

For now, let us take as our point of departure the irruption of the sacred, that numinous, irreducible excess – evident in Durkheim’s “collective effervescence”¹⁷ or Weber’s “charisma”¹⁸ – which animates and binds us to law beyond the merely formal claims of validity that a given legal system may demand. In the premodern era, one associates this excess with the divine right of kings. In the modern era, we associate it with the rise of popular sovereignty and the nation state.¹⁹

Carl Schmitt famously proclaimed, “Sovereign is he who decides on the exception.”²⁰ Acting within a state of exception in the name of a sovereign authority, the sovereign – whether monarch, Parliament, or people – may choose to abandon constitutional law (the supreme law of the land). Contention over the rightful genealogy or nomenclature or interpretation of the decision that determines what is sovereign may significantly disrupt civil society, leading to political strife and perhaps ultimately civil war. In the state of exception, the history, form, and significance of sovereignty come into view. At such times, as history has shown, the people may repudiate a king’s sovereign proclamation, just as the state may repudiate acclamations by the people – in blood, if need be.

Given the historic association of violence with the founding of political and legal systems, it should not prove surprising to witness the invisible ink of sovereignty materializing on the flesh of the body politic. As Thomas Jefferson famously wrote: “The tree of liberty must be refreshed from time to time with the blood of patriots & tyrants.”²¹ Or as Walter Benjamin observed: “Violence crowned by fate is the origin of law.”²² Jacques Derrida has followed suit: “Since the origin of authority, the foundation or ground, the position of law can’t by definition rest on anything but themselves, they are themselves a violence without ground.”²³ Or as Paul Kahn has more recently said: “The order of law begins in the exception of the Revolution.”²⁴

In its founding moment, law is neither legal nor illegal. Derrida calls this the absolute limit of the mystical foundation of law. We return here to Eliade’s Illud Tempus, the beginning time, which signals an irruption of the sacred into the realm of the profane. The state of emergency or exception, the moment of the Schmittian decision, when sovereignty is named anew, is a time out of time, a Dionysian moment, a time of wonder or terror, often signed in blood.

How do we understand this recurrent, exceptional state of affairs out of which fundamental political and legal formations take shape? At the outset, it is important to recognize that this is a metaphysical question. To grapple with the sacred is to reckon with its nature and naming. This is simultaneously a matter of epistemology, ontology, poetics, affect, and history. Do we perceive the undifferentiated, as yet inchoate presence of the sacred, as a black hole, empty of content? Is this what Otto meant when he alluded to “the holy minus morality?”²⁵ Is this but another name for Eros – a formless intensity that shimmers beyond good and evil? Might this be the Nothing of revelation to which Scholem referred? Is this what Schmitt regarded as the modern secular version of the divine act of creation ex nihilo?

To feel appalled in the face of such a capricious nominalism, the Nothing of nihilism’s empty, yet totalizing power, is already to identify a very different metaphysical origin.²⁶ But what if, rather than evoke the Nothing, one were to experience the original presence of the sacred as redolent with significance, rendering it inseparable from morality? What if, for example, at the heart of the numinous, one discerned the inexpressible abundance of love? An event such as this – simultaneously passing human understanding, yet evoking “something understood”²⁷– might conceivably identify the very source of our yearning for justice, a longing coupled with a hope to somehow complete in history what seems to arise outside it.²⁸ A metaphysic of love abhors exaltation of the Nothing. In Old Testament terms, to worship charisma or mystery or power for its own sake is the very definition of idolatry: the worship of a false god.²⁹ If love watches over justice,³⁰ the metaphysic of love cannot but condemn and repel a metaphysic of nihilism.

The question may come down to this: is the existence of the state, the autonomy of the political as such, the primary objective of politics and law, or does politics exist to serve a higher end?³¹ The metaphysics of authority determines how we answer this question. But which metaphysic do we choose? For example, is it the one underlying Schmitt’s political theology of executive decision as an act of creation ex nihilo, echoing the all-powerful will of a pre-Reformation deity unconstrained by natural law? Or does the sovereign acquire legitimate authority from a source extrinsic to his or her will, such as the scriptural promise of redemptive justice or love?

Let it suffice for now simply to say that the sacred presence in question points to an excess we can neither adequately measure or express. To encounter the sacred in the state of exception is to risk a suspension of familiar organizing structures and their respective norms, whether utility or right.³² Therein lies both the danger and promise of the sacred. Disruption is its signature, yet it shimmers with possibility. When the sacred irrupts into profane time the flash of its presence, like an uncanny x-ray, momentarily captures the structures of order (of knowing and judging) that have been invisibly operating all along. It is as if to say, yes, this is the network of forms in which we have been living, thinking, feeling, judging. These are the codes, and this is the shared imaginary that has been organized around these largely hidden, unconsciously entangled, cognitive, epistemological, affective, and metaphysical components. These are the frames that have been constituting the form of life that normalizes (establishes and polices) law and politics as we have known them.

The irruption of the sacred provides potential liberation from pre-existing constraints, including laws and moral codes. This “anarchic breeze” (as Gershom Scholem once put it),³³ akin to Benjamin’s “divine violence,”³⁴ negates structure in order to permit what Smith has referred to as a “free response” to another order of being and knowing.³⁵ In this respect, the sacred is a highly charged state of affairs that offers a passage that may lead to a fundamental change in our state of mind, identity, heart, and tongue. The sacred shakes a polity to its foundation, reviving the violence of its origin. The emergence of the sacred coincides with a state of emergency in the life of the body politic, when basic norms are suspended. At such times, a particular form of life, a discrete way of knowing and being among others, may be either reaffirmed or given up for another. Dwelling within this paradoxical, disruptive, highly expectant state of knowing-unknowing, a sacred past may seem to merge anew with the present, or the present may seem to shimmer with the future perfect – the already now of a perennial, redemptive promise. Yet, the tenses remain asymptotic: the present is an imperfect meeting ground, a place of endless negotiation among others, for past and future only truly merge in messianic time.³⁶

It is law, redolent of finitude, imperfection, and error,³⁷ like any other expressive form in profane time, that keeps messianic fulfillment at bay. Indeed, to presume messianic certainty in the state of exception is to risk totalizing both knowledge and will. This is the risk that would lead beyond good and evil, where power does what it will.³⁸ If justice, as I shall soon suggest, remains inextricably tied to the ever-present risk of error, then power, once totalized, remains forever estranged from justice. This threat, no less metaphysical than existential, waits upon naming what is sovereign. Whether such naming is an act of meaningful freedom or totalizing power takes us to the crux of the metaphysical dilemma that the sovereign imagination historically faces.

We hear this challenge resonate as far back as Plato in the course of his probing of the meaning of love: What god do you follow?³⁹ Which is to say, in the name of what essence, if any at all, do you claim (or what god or essence claims through you) the meaning of your life among others? For to be in the image of God (or a god, or an essence) is to enact its reality, its being, its presence. One could say, in this sense, that political life, as well as life in the law, is rife with gods, or with none. What does the sacred call for? God’s (or a god’s) love of the beautiful and the just, or the impulse of terror in the face of death, or the ecstasy of a sovereign will that prompts us to divest all power from self to state sovereignty?

In short, naming promises (or threatens) to lead us from one state of knowing and being, one fundamental network or system of order, one polity or shared or individual identity to another. Knowing as a state of being means that we become what we come to know, the way coming to know love is to love and coming to know justice is to act justly. Knowledge in this sense is always a verb, a way of being in the world among others. The promise of naming lies in the hope of renewal, which is to say, transformation in the direction of some shared vision of flourishing. The threat of naming lies in not knowing, whilst in the grip of wonder or terror, what force one may be serving before the agony of naming and its consequences may be completed. Naming, in this sense, invites the kind of thinking that takes responsibility for thinking about thinking in the sudden freedom of choosing. Naming responds to what calls, bringing into being that which is named;⁴⁰ and yet, the danger of misnaming cannot be avoided. It is this inescapable risk of error that gives birth to the ethical: thinking with utmost care about thinking in the context of power and the negotiation of human needs.⁴¹

In the context of human affairs, when it comes to living in community among others, the foundational act (and constitutive offshoots) of naming operates within the realm of culture. As Castoriadis writes, “Culture is the domain of the imaginary … the domain of the poietic, of the element of society that goes beyond the merely instrumental.”⁴² The history of culture provides a vast panorama of the different ways in which the sacred irrupts into history – catalyzing the construction of “actual minds and possible worlds”⁴³ – entangling new esthetic and ethical forms, new epistemological and artistic registers, bound by the libidinal conatus of poetic imagination.⁴⁴ From Anaximander’s apeiron (the boundless) to the hundred letter long thunderclap of Zeus accompanying the fall of Adam and Eve that irrupts on the first page of James Joyce’s Finnegan’s Wake (“Bababadalgharaghtakamminarronnkonnbronntonnerronntuonnthunntrovarrhounawnskawntoohoohoordenenthurnuk”): language harbors more than it can bare when it strives to elucidate the sacred. Similarly, foundational images also may shimmer with an irreducible excess.⁴⁵ Here as well a strange surplus pulses beneath the surface of form, sometimes marring the very form from which it seeks release.

We witness such radiance in early medieval times, for example, when viewers might gaze with the eyes of the spirit upon an image constituted not as a representation, but as a threshold. The icon thus becomes not simply a form or object, but an activity, a crossing over, a liturgical performance in which the flesh of the gaze meets with “the flesh of the resurrected,” as Ivan Illich once put it.⁴⁶ Or, leaping forward in time by a millennium, consider Vermeer’s Girl with a Red Hat (1665) where we witness another kind of uncanny visual excess (see Figure 3.1).

Figure 3.1 Vermeer’s Girl with a Red Hat (1665)

A Vermeer’s Girl with a Red Hat (1665)

What is that looming vermillion field resting on top of this girl’s head – that strange pictorial intensity that barely even pretends to be a hat? Its very presence seems to undermine the painting’s representational coherence. We might say it is a kind of painterly disfigurement, an eruption that points toward an entirely different sort of aesthetic, as if another expressive code were breaking through. This esthetic disruption forces viewers to look differently. In the process, it also forces us to confront our assumptions about what painting is. Something is happening here. This isn’t conventional mimesis as representation. It is as if something is bursting forth from the painter’s unconscious – like a symptom.⁴⁷

In mid-twentieth century abstract expressionist painting, we witness a further shift in representational authority – away from formal representation itself. In abstract expressionist works all representational form has been evacuated. Only a shimmering color field remains, as in Mark Rothko’s Four Darks in Red (1958) (Figure 3.2).

Figure 3.2 Four Darks in Red (1958) Scala Archives

© Madrid, Museo Nacional del Prado

B Rothko’s Four Darks in Red (1958)

Without figures or representations of any kind to relate to, there are no stories to tell.

Words fall away, as will happen when one is immersed in music. All that remains is the slow dance of these shimmering color forms, and your own gaze feeling its way across, around, and within the canvas. It is a strange visual dance, as if accompanied by an other-worldly score, watching subtle hues (black within black, red within red) separate out and move amongst themselves within each separate band, as each band oscillates against the unsettled borders of its neighbor, and the ensemble oscillates together as a unified whole within the larger luminous field of incandescent red. Without words, affect surges. An uncanny joy pierces the heart, a deathly despair, an insistent hope, as of daybreak…

By turns riddling, parabolic, discordant – the mystifying trace of the sacred is never fully at home in language or image. Ordinarily, the sacred remains immanent, latent in extant political, legal, and cultural structures. In times of crisis, however, when core beliefs are shaken and states “yet unborn”⁴⁸ may appear on the horizon, the polity undergoes an “ordeal of the undecidable.”⁴⁹ It will ease once foundational cultural and cognitive sources of authority have been named anew.

One thing is certain: the sacred may be elusive, but it is not abstract. What we know of (or from) it is a state of knowing not a concept of one. One does not shudder from abstractions. We shudder in the grip of intense forces that threaten to destabilize all that we are and know. Forces on such a scale are sovereign: they go to the heart of the sovereign imaginaries that strive to contain them. Let us see, then, whether a bit more may be said about the historic nature and function of sovereign imaginaries.

II Sovereign Imaginaries: On the Threshold of the Abyss

An imaginary is both a repository for and a discrete way of organizing sensory data as well as affective intensities, memories, beliefs, and other constituents of meaningful experience. Shared imaginaries generate common understandings that make possible common practices, expectations, and beliefs constituting a collective sense of political and legal legitimacy. The imaginary – or imaginaries – we inhabit are descriptive as well as normative: they tell us how things typically go, and how they ought to go. Since people ordinarily are not conscious of the constitutive elements of a given imaginary, conflicts or even contradictions that arise as we shift from one framework to another are usually not an issue. It’s just “the way things are”: the way events and others appear to us when a given set of cognitive routines, affects, and expectations are cued up by the particular set of circumstances we find ourselves in. As Jerome Bruner has noted, we inhabit different worlds when we shift from one way of knowing to another, shifting ways of minding self, others, and events around us.⁵⁰

This understanding of sovereign imaginaries builds upon Charles Taylor’s notion of the social imaginary, which is to say, the way people “imagine their social existence, how they fit together with others, how things go on between them and their fellows, the expectations which are normally met, and the deeper normative notions and images which underlie these expectations.”⁵¹ The social imaginary offers a common understanding which makes possible “common practices, and a widely shared sense of legitimacy.”⁵² Notably, Taylor also acknowledges that the social imaginary “can never be adequately expressed in the form of explicit doctrines, because of its very unlimited and indefinite nature.”⁵³ In other words, the excess that it translates in coherent form carries an overarching authority that remains irreducible to any particular cultural (visual or textual) expression or repertoire of ceremonial or shared ritual practices. In short, the operative authority will never be fully theorized or modeled. A good deal of tacit understanding remains operative in the interpretive or adjudicative process. What may be experienced as an epiphany (a self-authenticating experience of the overpowering force of God’s love, say, or existential anxiety before death in the midst of a Hobbesian state of nature) remains irreducible to the expressive forms that epiphany produces.⁵⁴

What Taylor calls a sense of “fullness,” what Durkheim calls “collective effervescence,” and what I call the uncanny shimmer of the numinous in the presence of the sacred animates the sovereign authority that binds the community.⁵⁵ In this sense, one may say along with Santner that the libidinal investment of Eros in foundational rituals, texts and images provides the prime bonding energy that holds a community or polity together.⁵⁶ This includes the community of law. As Robert Cover famously wrote: “No set of legal institutions or prescriptions exist apart from the narratives that locate it and give it meaning. For every constitution there is an epic, for each Decalogue a scripture.”⁵⁷ And whether in words or images (augmented perhaps by sound or the integration of multiple expressive media),⁵⁸ stories cannot be adequately understood in isolation from the play of emotional, normative, and spiritual intensity. The same may be said in regard to the functional limits of abstract rules and concepts. They simply cannot be relied on to do the work of justice on their own. Narrative rises to the particular, as Jerome Bruner has said (citing Karl Marx).⁵⁹

We find signs of such intensity in foundational representations of sovereignty as well as in sovereignty’s nullification or absence. Here is where we encounter the disorder that lies at the heart of law’s order. In this reckoning, sovereignty and the sacred occur together. While the anti-structural animus of the sacred disrupts conventional esthetic and ethical codes (like market economics and utility),⁶⁰ its incalculable excess offers a potentially revolutionary source of authority. Sovereignty arises out of the forge of these antiphonal forces. In the presence of such forces we shudder. That shudder, as we read in Plato’s “Phaedrus,”⁶¹ is the soul’s signature: the mark of the sacred in the flesh.⁶²

When law authorizes a particular world of meaning (along with a discrete set of meaning making practices) we may speak of a sovereign imaginary. It is sovereign because, like the one ring of power in J. R. R. Tolkien’s great saga,⁶³ this one rules them all. If you operate in a knowledge system or use an expressive code unrecognized within law’s sovereign imaginary you are off the power grid: your claims of right will remain unheard and unseen. This is why Aboriginal land claims in Australia, for example, based on alternative (non-logocentric) metaphysical assumptions (like the Ancestral Spirit), expressed in correspondingly alien codes, such as sacred songs and dances, fell upon deaf ears and blind eyes within the official Australian court system.⁶⁴ This is what it is like to lay claim to a metaphysical order that eludes conventional epistemologies.

If the operative code of a sovereign imaginary remains veiled or ill-understood, those who wield power in law’s name remain unable to knowingly or intelligently justify the basis for law’s authority – much less regulate the scope of its application in particular cases. Law’s legitimation requires a knowing acceptance of the shared cultural resources for legal meaning and meaning making practices that constitute and codify the particular sovereign imaginary in which a given legal system operates.⁶⁵ By addressing this matter self-reflexively, cultural literacy informs critical judgment in regard to a crucial task, namely: whether to affirm the legitimacy of a given sovereign imaginary – or perhaps imagine an alternative. Critical judgment embraces a process I shall describe shortly as “thinking about thinking.” This kind of thinking may be seen as a prerequisite to the meaningful exercise of freedom in society.

Whether in politics or law, it matters not only in what values and beliefs we invest, but also where along a spectrum of possible affects and emotions we stake a shared public claim. For example, recently, in both the United States and England, voters faced a political landscape awash in the affective intensity of the friend/enemy polarity.⁶⁶ Rage against the alien Other was presented and widely accepted as the agency of a newly empowered nationalism. Nationalism of this sort typically operates within a localized affective bandwidth. Staking a claim within a dominant affect must be accounted for in cognitive as well as in esthetic and ethical terms.⁶⁷ Shifting interpretations of the sacred, including the manner in which authoritative interpretations are either justified or simply expressed, make genealogies of law’s historic claims to sovereign authority both revealing and necessary. Each generation needs to recognize the actual and possible cultural, cognitive, affective, and metaphysical sources of authorized legal meanings and meaning making practices that originate within and operate alongside a given sovereign imaginary.

Charles Taylor has written that a salient feature of social imaginaries is their ability to help us recognize “ideal cases” and to discern the underlying moral or metaphysical assumptions that constitute the ideal. This is also the case in regard to sovereign imaginaries. For example, consider in this sense early modern legal emblems that visually depict the sovereign source of law’s legitimacy. Ernst Kantorowitz famously coined the expression, the King’s two bodies to describe the integration of the divine and the human in the symbol of royal authority.⁶⁸ This sovereign authority vividly appears in the legal emblem: “Wisdom dominates the stars” (1635) (Figure 3.3).

Figure 3.3 Wisdom dominates the stars (1635)

A Wisdom Dominates the Stars (1635)

Here the Sovereign stands between the globe and the heavens. As Peter Goodrich writes: “The celestial light rains down on the book of wisdom which as sovereign speech is the highest law.”⁶⁹ In this image, the theological provenance of law’s divine authorization is plain. The King’s two bodies – human and divine – manifest the divine source of the law. As Louis XIV liked to say, “The King is like the Sun, holding everything together.”

But something striking happened in the latter half of the seventeenth century. By 1656, eight years after the bloody, chaotic Thirty Years War in Europe (with its mind boggling eight million casualties), the divine authority of law’s sovereignty seemed to be slipping away. We get a sense of this metaphysical shift in a famous, and very strange painting by Velazquez (Figure 3.4).

Figure 3.4 Velasquez, Las Meninas (1656) Prado Meuseum

Museo Nacional del Prado Difusión

B Velazquez, Las Meninas (1656)

We stand before a painting of the king and queen of Spain. Except there’s one problem: they’re not really part of the picture. They are enigmatically present as absence – like ghosts, in the form of reflected images in a small mirror at the rear of the studio. They exist only as images within an image. Images without an original: how perfectly postmodern. King Philip IV and Queen Mariana are gazing out at us, the viewer. But there’s something odd about this gaze. As our eyes (the gaze of the spectator) meet theirs (the royal gaze), together with the sovereign gaze of the painter, a sudden realization strikes. How uncanny! We can only meet the gaze of the king and queen from their mirrored image if we are standing in the very place they themselves ought to be occupying. How curious: we, the viewers, have taken over the space of the sovereign gaze. This is more than a little strange. Are we missing from the mirror where our image ought to be? Or are the king and queen missing from the external reality that their image mirrors? The image that is painted on the painting within the painting might tell us – if it weren’t turned away from our eyes, as unknowable as its source. Dwelling on this paradox can trigger a sense of vertigo – like desire trying to grab hold of itself. In short, it’s like standing on the threshold of an abyss – the province of the sacred.

In Las Meninas the vanishing point of perspective terminates in a vertiginous paradox. On the threshold of sovereignty we witness something phantasmal. The disruptive irruption of the sacred appears as an absconded authority, or perhaps as a subversive substitution. Is it royal or popular sovereignty that is angling for our gaze? Velazquez’s vertiginous painting takes us beyond the conventional bounds of representable authority. It is as if the ground beneath our feet has opened. Somehow, we are falling while standing still, as if we’ve all suddenly been transported to some strange liminal no-man’s-zone, like a dream from which it is difficult to awaken.⁷⁰

This is what it’s like when what is sovereign remains in suspension. Everything becomes phantasmal. As Foucault put it in his deft description of Las Meninas:

All the interior lines of the painting, and above all those that come from the central reflection, point towards the very thing that is represented, but absent. At once object – since it is what the artist represented is copying onto his canvas – and subject – since what the painter had in front of his eyes, as he represented himself in the course of his work, was himself, since the gazes portrayed in the picture are all directed towards the fictitious position occupied by the royal personage, which is also the painter’s real place, since the occupier of that ambiguous place in which the painter and the sovereign alternate, in a never- ending flicker, as it were, is the spectator, whose gaze transforms the painting into an object, the pure representation of that essential absence.⁷¹

The suspension of sovereignty activates the experience of vertigo that the state of exception triggers. We stand against a void. In the state of exception, the boundary condition for the bounded (naming what is sovereign) is the boundless. By reducing sovereignty to the vanishing point, Velazquez creates a startling, and perhaps dangerous tear in the fabric of authority. Nietzsche once wrote: “[M]an would rather will nothingness than not will.”⁷² The will to power, in this sense, seeks power in its naked intensity for the sake of life itself. But this kind of nihilism, the will to intensity in itself, independent of content, risks terror.⁷³

These stakes are hardly abstract. By the eighteenth century, in post-revolutionary America, France, and England, popular sovereignty had become a fait accompli. The great French painter Jacques-Louis David captured the moment visually. David was a member of the extremist Jacobin group led by Robespierre. He was elected to the National Convention in 1792, and by 1793 he rose to a position of dominance in the art world in France. (His nickname was “Robespierre of the brush.”) The Death of Marat (1793) (Figure 3.5) was one of David’s masterworks. It invites us to visualize yet again the devolution of power that Velazquez dared to imagine in Las Meninas. Here we encounter in visceral terms the move away from the King’s two bodies to what Eric Santner has called the People’s two bodies.⁷⁴

Figure 3.5 David, Death of Marat (1793) Royal Museum of Fine Arts, Belgium

J. Geleyns – Art Photography © Royal Museums of Fine Arts of Belgium, Brussels

C David’s The Death of Marat

Of particular interest in this image is the strange empty space that occupies nearly half of David’s canvas. Art historian T. J. Clark has noted that in the cult of Marat, David saw the first forms of a liturgy and ritual in which “the truths of the revolution itself would be made flesh – People, Nation, Virtue, Reason, Liberty.”⁷⁵ But how would such a “liturgy” find an appropriate form of expression? Santner discerns an aesthetic revolution at work in David’s painting. It emerges as a new kind of abstraction. According to Santner (citing T. J. Clark), the painter “seems to make Marat much the same substance – the same abstract material – as the empty space above him.”⁷⁶ Equating that enigmatic space with the King’s sublime body (“the flesh”), this abstraction of sovereignty – its sudden vacancy – symbolizes “the impossible representation of the People.” The provenance of popular sovereignty marks the revolutionary shift that is at work. No less is at stake here than the dissolution of the iconic representation of the incarnation of Christ, established for centuries, as the underlying model for the King’s transcendental body. In this newly emergent sovereign imaginary, the people’s transcendental body is animated by a libidinal excess, a somatic surplus of immanence, that we discern as a remnant of sacred violence.⁷⁷

This uncanny animus is now viewed as something every citizen carries within his or her own flesh. Eros, the libidinal god translated as sovereign in the state of exception, bears the power of life and death, to declare who is worthy of life (heimlich) and who is not (unheimlich). Of course, as the ensuing Reign of Terror would all too vividly reveal, when popular sovereignty crowds out the self in favor of the “mass”⁷⁸ the risk of error is greatly ramified.

When we return to the beginning time of sovereign imaginaries we confront fundamental assumptions that constitute a given imaginary’s founding vision. These assumptions are of metaphysical moment, which is to say, they address states of affairs not subject to human will.⁷⁹ It is at this juncture that we must return to a theme deferred: the difficult matter of clashing metaphysics. Naming what is sovereign in the state of exception poses a metaphysical dilemma. Is it the Nothing of revelation of which Scholem spoke, the naked power of deciding what is sovereign ex nihilo, which echoes in Carl Schmitt’s executive decision in that state of exception? Or might we shift metaphysical registers from the nothingness of the ex nihilo to a sense of irrepressible abundance within an economy of excess wherein one might discern the shimmer of love watching over justice?⁸⁰

III Poised between Power and Justice: In the Penumbra of Error

In Political Theology, Carl Schmitt draws an analogy between the sovereign decision that declares a “state of exception” and the secular miracle of law that subsists beyond the will of the sovereign. Schmitt deems the decision that identifies the state of emergency as necessary in order to save the state from enemies within and without. There is no rule, no law, no institution that can constrain that decision. Both the Schmittian state of exception and the miracle signify a break with the existing order of things; and both project a model of sovereignty that is based on absolute power. For Schmitt, this act models God’s creation of the world out of nothing (creatio ex nihilo). As Schmitt writes: “the decision emanates from nothingness.”⁸¹

Whether or not one accepts this interpretation of creation ex nihilo in the Old Testament, and the matter is controversial,⁸² it is important to recognize the implications of doing so. If God remains unconstrained by nature, if his will alone is supreme, then (as Rudolf Otto puts it): “good is good because God wills it, instead of that God wills it because it is good.”⁸³ If law’s sovereignty follows this model then there can be no moral check on its power. No power exists to oppose the sovereign’s “absolutely fortuitous will.”⁸⁴ If the sacred is beyond good and evil, naming what emerges as sovereign from out of that numinous origin may proceed as an act of pure will unconstrained by moral considerations. Indeed, this is the divine command theory that Schmitt embraced. As Otto observed, the intensity of the numinous stands apart from any normative content.⁸⁵

Whether the sacred gives rise to absolute sovereign power unconstrained by morality or remains bound to an essential claim (the unchanging natural law) of justice,⁸⁶ is a metaphysical question. As such it lies outside the realm of certainty. If uncertainty, then, is the one thing that is given, how might this point of departure shape and inform our approach to sovereignty and the sacred? In the dispensation proposed here, we need a metaphysic of freedom, based on the ineluctable risk of error, to guide thinking on the threshold of the abyss of the sacred. If power without moral content becomes the model for what is sovereign it is possible to exalt any value or none at all. This is nihilism.⁸⁷ In such a state, error in the grip of a totalized will to power risks becoming totalized. The safeguard against totalized error is thinking, or more particularly, what Rowan Williams (following Gillian Rose) calls “thinking about thinking.”

If the intensity of the sacred rends structure and, in so doing, opens up the possibility of new political and legal forms, metaphysical reflection arises in the reflective moment of freedom that the possibility of error creates. As Williams writes: “Once we start creating a city in discourse, working at and testing the bonds that language requires and presupposes so as to rule out the arbitrary and the partial, the ‘passionate’ in isolation, the task before us is finally ‘metaphysical.’”⁸⁸ In Williams’ terms, the primary metaphysical question from which the origin of law and politics arises is this: What name are we to assign to the “underlying intelligible structure” of “human bondedness and exchange?” This describes the shared responsibility of forging that brand of legal and political discourse in which particular ways of life may be negotiated, which is to say, articulated and defended among others.⁸⁹

To the extent that metaphysics addresses the essence of what it is to be human, that state of affairs which remains exempt to willful or ideological forging, error and the sacred origin of sovereignty must walk hand in hand. Intensity requires the modulating effect of humility.⁹⁰ The inescapable prospect of error, getting the sacred wrong, argues for intelligible action, which is to say, “action that can be criticised and defended.”⁹¹ The alternative risks imposing erroneous names upon autonomous others. In short, it risks crushing actual minds and possible worlds by sheer force of will. The metaphysics of error tempers the metaphysics of power by interceding with self-doubt in naming what is sovereign. Williams aptly describes this as the way in which “properly political life is made functional to the economic exchanges in civil society.”⁹² By contrast, fiat, the totality of will evident in the Schmittian decision, cuts short the possibility of reflection (thinking about thinking) that meaningful freedom in the face of error requires.

The metaphysics of error and power are incessantly self-correcting in the face of the sacred. This elevates Keats’s “negative capability,” the ability to tolerate uncertainty as an inescapable condition of life among others, as the key to staving off the prospect of totalizing error.⁹³ Negative capability is the armor meaningful freedom dons against the tyranny of false certainty. This leaves us with the unending political and legal task of identifying and clarifying our individual and collective understanding of the source and authenticity of what we name as sovereign. In this sense, the task of legal and political thinking is inescapably metaphysical. Like theological thinking, legal and political thinking thinks what is difficult, which is to say, it holds fast to the prospect of error in naming what is sovereign. As Williams writes: “Thinking what is difficult, thinking in dispossession, is essential to a politics that is anything other than a programme for the alternation of tyrannies and the unthought conflict of unreflective interest; thinking what is difficult … insists on an ontology of some sort, capable of holding together the reality of difference and the imperative of work (i.e., reconciliation).”⁹⁴

In an effort to anchor what has been said here to something firmer and closer by, I will close with a vivid, recent illustration of this kind of thinking in the act of naming what is sovereign on the threshold of the sacred. It is a story of political resistance and hope in the life of a teenager called by tragedy and love to political action. It narrates in brief how a young woman named Emma Gonzalez publicly assumed responsibility for naming what is sovereign.

IV The Sacred Now: Holding the Stillness

Sovereign imaginaries arise, transform, and fall apart in a variety of ways. To trace this history in law and politics is to engage in a genealogy of the sacred in history. In early American history, for example, popular sovereignty emerged in public expressions of the people’s will. At first, still parasitic upon the sovereign imaginary of the King’s two bodies, the people or their representatives assumed responsibility for saying when the king’s commands ran counter to the will of God.⁹⁵ Thereafter, public conventions of the people came to displace the royal will altogether.⁹⁶ Petitions and assemblies now became the source of a new sovereign authority: the people in the act of naming themselves as sovereign.⁹⁷ The American Declaration of Independence explicitly identifies that authority in its opening words: “We the People.”

Over time, that sovereign authority has been reasserted in a variety of ways. For example, it has been identified in the form of labor’s right to “the general strike” from which the right to overthrow the legal system may be inferred.⁹⁸ It also has been described as a “constitutional moment” in which the sovereign will of the people manifests itself by seizing control over all the branches of government. Starting with an appeal to “higher law,” this kind of transformation culminates in the codification of novel claims of right ultimately sealed either by the combined authority of the legislature and the highest court in the land or by a super-majoritarian ratification of a proposed constitutional amendment.⁹⁹

At other times, the legal and political force of popular sovereignty irrupts in symbolic acts of organized violence. For example, in the years immediately preceding the American civil war, John Brown’s raid on Harper’s Ferry captured the imagination of the nation, and of opponents to slavery in particular. Brown’s biblically based, righteous anger against the evil of slavery invoked a right to sovereign violence that made him a touchstone for justice in his time. While the action itself, in which Brown and twenty-one raiders seized arms from a federal arsenal with the intent of sparking a broad slave rebellion, was naïve and ineffective in practical terms, the spirit of the act far transcended its immediate outcome. When Brown was hanged for treason, Henry David Thoreau commented: “No man in America has ever stood up so persistently and effectively for the dignity of human nature, knowing himself for a man, and the equal of any and all governments.”¹⁰⁰ When federal troops marched in the bloody civil war that put an end to slavery, singing “John Brown’s body lay a mouldering in the grave, but his spirit goes marching on,” they elevated his “body politic” over his natural body. As Smith writes, Brown “marched on as a figure for sovereignty.”¹⁰¹

Non-violence has likewise captured the transcendent spirit of a popular, grass roots movement that sought to renew the meaning of justice in the people’s name. Consider in this regard the American civil rights movement’s quest for racial equality during the late 1950s and 1960s. It was a movement that forced into view the very foundation upon which the American republic was built. As Martin Luther King famously wrote from a Birmingham jail cell:

An unjust law is a code that a majority inflicts on a minority that is not binding on itself. This is difference made legal. On the other hand, a just law is a code that a majority compels a minority to follow, and that it is willing to follow itself. This is sameness made legal … One day the South will know that when these disinherited children of God sat down at [segregated] lunch counters they were in reality standing up for the best in the American dream and the most sacred values in our Judeo-Christian heritage.¹⁰²

In the state of exception, the sacred irrupts anew. On such occasions new words come to frame foundational values as well as the emotional tone and texture of a community’s or state’s constitutive bond. Risks abound in the act of naming what is sovereign. As Judith Butler notes, “if and when political orders deemed democratic are brought into crisis by an assembled or orchestrated collective that claims to be the popular will, to represent the people along with a prospect of a more real and substantive democracy, then an open battle ensues on the meaning of democracy, one that does not always take the form of deliberation.”¹⁰³ There is no predicting how the sacred will irrupt into history, whether with righteous violence or peaceful civil disobedience, whether in fiery words of retributive anger or the silent stillness of prayer.¹⁰⁴

I want to pause for a moment over the latter possibility. Can silence make the sacred break into secular time, infusing words that ensue with the shimmer of sovereign authority? Let us consider one such moment in recent history – a moment in which a young student leader named Emma Gonzalez publicly held a fierce and sublime stillness in order to name justice anew.

Toward the end of the school day on February 14, 2018, nineteen-year-old Nikolas Cruz walked into Marjory Stoneman Douglas High School in Parkland, Florida, armed with an AR-15 military style semi-automatic rifle and multiple magazines. After firing indiscriminately at students and teachers, seventeen people lay dead, fourteen students and three teachers. Seventeen others were wounded. The carnage lasted a little over six minutes.

This was not an isolated event. In 2012, at Sandy Hook Elementary school in New Jersey, twenty children and six adults were shot dead. Since Sandy Hook, there have been 290 recorded shooting incidents at schools in the United States, ranging from mass killing and wounding to accidental gun discharges and suicides.¹⁰⁵ In the aftermath of the tragedy at Marjory Stoneman Douglas High School in Parkland, Florida, student survivors launched a high-profile campaign for tougher gun laws and safer schools. These efforts included the creation of a group called Never Again MSD through which student leaders organized public demonstrations around the country. The largest assembly was held in Washington, DC, on March 24, 2018.

Emma Gonzalez was one of those student leaders. Earlier on the day of the shooting at Parkland, in anticipation of Valentine’s Day, Gonzalez had arranged a school event in which students inscribed and sent Valentine cards that expressed love to friends, acquaintances, and others known perhaps from afar. Some of the recipients of these love notes were killed or wounded later that day. Gonzalez’s own brush with death was close. She and a friend had planned to be in one of the classrooms at a time when the gunfire there was most intense. If not for her assembly room teacher’s unexpected insistence that students sign an attendance sheet Gonzalez herself might well have been among the casualties.¹⁰⁶

Grieving for her lost friends, traumatized by her own proximity to death, and outraged by the unwillingness of elected officials to take action in support of safe schools and new gun control laws, Gonzalez took her place as the final speaker at the Washington rally on March 24, 2018 (see Figure 3.6). Gazing out at a crowd estimated at from 200,000 to as many as 800,000 people, Gonzalez began to speak: “Six minutes and about twenty seconds,” she said. “In a little over six minutes, seventeen of our friends were taken from us, fifteen were injured, and everyone in the Douglas community was forever altered.” She continued: “Everyone who has been touched by the cold grip of gun violence understands. No one understood the extent of what had happened. No one could believe that there were bodies in that building waiting to be identified for over a day. No one could comprehend the devastating aftermath or how far this would reach, or where this would go.” She added: “For those who still can’t comprehend because they refuse to, I’ll tell you where it went: right into the ground, six feet deep.”

Figure 3.6 Marjory Stoneman Douglas student Emma Gonzalez at the ‘March for Our Lives’ demonstration for stricter gun control laws on March 24, 2018, in Washington, DC.

(Mike Stocker/Sun Sentinel/Tribune News Service via Getty Images)

Gonzalez went on next to name all the victims of the Parkland shooting. Then she stopped speaking altogether. She stood in silence, staring into the distance before her, tears streaming down her face, nearly immobile, audibly taking in great gulps of air, until a timer beeped. Six minutes and twenty seconds had elapsed: the time that it took, as she would tell the straining crowd before her, for Nikolas Cruz to kill and wound thirty-four teachers and students.

Gonzalez finished by speaking these words: “Fight for your lives before it’s somebody else’s job.”

For six tense minutes Emma Gonzalez maintained a fierce, poignant, discomforting silence. Somehow, the focus and intensity of her passion proved strong enough to hold many thousands of people in a shared stillness.¹⁰⁷ It felt like the stillness of prayer.

Stillness and prayer are not strangers. As Rowan Williams has said: “You have to still your body and your imagination … [P]rayer is communion, it’s that allowing the depth within and the depth outside to come together.”¹⁰⁸ Williams goes on to speak about the richness of silence:

R. S. Thomas wrote a number of poems about prayer, and they’re mostly to do with waiting and silence and a sense of the absence of God, and yet in the middle of that awareness of absence there is the realization that you have arrived: there is a reality and it’s beyond the words you could find and you’ve got to wait, you’ve got to stay with it.¹⁰⁹

According to this dispensation, prayer challenges us to hold that stillness. And it is in this sense, I submit, that Emma Gonzalez’s embodiment of a fierce stillness invoked a state of exception in which naming what is sovereign emerged from an uncanny silence, a silence akin to a political and legal prayer.

Strange grace: the truth of tragic suffering and love that converged and filled Emma Gonzalez, distilling into a silent cry for justice. If, as Williams has put it, “the point of it all is that prayer is allowing truth and reality to flower in you, and therefore it’s part of becoming more human and more yourself,”¹¹⁰ then we may say that Emma Gonzalez’s cry for justice radiated in those six tense minutes of silence the truth of her being. On the cusp of the sacred, knowing and being merged. It is the uncanny, shimmering grace of this uncontainable intensity that empowered Gonzalez to hold so many thousands of souls in a shared stillness. Thus empowered, Gonzalez sought to pry open the gates guarding state and federal houses of legislation in an effort to infuse life into the dead letter of gun control law.¹¹¹ In short, she dared to catalyze a state of exception in which tragic suffering, fused with love, named anew what is sovereign. Taking public responsibility for naming what is sovereign, Emma Gonzalez called justice from a sacred, enfolding silence into impassioned speech, so that legal and political change might ensue.

This is how the sovereign imagination works. It is how the sacred bond that holds together a community, or a polity, may be woven anew – on the threshold of an abyss, in an exceptional moment, when the uncanny power of the sacred suddenly shines forth. When law and politics take flight in words that shimmer with an uncanny intensity, ensuing perhaps from the poetic stillness of a prayerful silence, justice may be named anew. Thus does the sovereign imagination expand and revitalize the constitutive bounds of legal and political discourse.

V Conclusion

The sacred radiates with an uncanny power, but lacks intrinsic content. Its nature is to disrupt, bringing structures of sovereign authority into question. On the threshold of the sacred, sources of legitimation, old and new, come into view. But judgments must be made reflecting the individual and collective responsibility for naming what is sovereign.

The sacred irrupts as a liberation from structure and utility, placing extant moral codes in suspense. In the state of exception we respond to a sacred call and a sacred calling. Akin to Scholem’s “anarchic breeze”¹¹² and Walter Benjamin’s concept (and John Brown’s putative embodiment) of “divine violence,” the sacred invites alternative ways of being and knowing. But is it the call of illimitable justice or naked power that invites this kind of free response? Following Schmitt, sovereignty invites us to name political and legal power ex nihilo, with no responsibility to others. Justice, on the other hand, invites us to name what is sovereign in situ, which is to say, in relation to others and the needs they exist in. The new names of justice that emerge out of the state of exception arise in response to those needs. They also arise against the ever-present specter of human error. To name what is sovereign absent self-reflexive awareness of error risks totalizing political and legal power on the basis of a false certainty. The competing metaphysics of justice and nihilism (the will to power ex nihilo) split around this pivot.

Thinking about thinking in the act of naming what is sovereign thinks about error. This is what safeguards thinking from injustice. Power gives birth to the ethical on the back of the sacrificed other. Meaning is born in our attunement to need: the needs of self and the needs of others. This is the way love (self-love as well as love of others) watches over justice.¹¹³

Idolatry, according to the metaphysics of justice, is indifference to need. Justice, locked within the metaphysics of power, is the triumph of will. On the threshold of an abyss, when the sacred irrupts into presence, the sovereign imaginary prepares for grace or terror in the act of naming. Freedom gains or loses meaning in the choice of names we assign – which is to say, in the polities we enact and the identities we thereby assume – in the political and legal act of accepting (or rejecting) those names as our very own. In this sense, responsibility for freedom is metaphysical. And it is in freedom and wonder (or terror) that we name what is sovereign.

Sovereign imaginaries arise from states of exception in the course of which metaphysical truths about the way humans and things exist in the world come into play within history. The foundational narratives that constitute such imaginaries contain visions that are consonant with the metaphysical underpinnings of the narrative in question. Each narrative assumes certain constants about what it is to be human, what thinking and feeling are like, and how living within particular registers of thought and feeling gives rise to particular ways of being among others. This is what it means to speak of a sovereign imaginary as a constitutive nomos, a way of life – which includes discrete ways of being together in need and aspiration within a political and legal order.

The sacred may announce a new possibility, but how we construe that announcement remains crucial. The Schmittian decision in the state of exception totalizes will and occludes the interpretive and corrective power of thought and negotiated action. It refuses to acknowledge its totalitarian power is subject to error. Whether in the service of law or the political for its own sake,¹¹⁴ the absolutized decision amplifies risk absolutely. By contrast, the constitutive metaphysical narrative of meaningful freedom under the rubric of error leaves uncertainty in place. In this view, interpretation and negotiated clarification of need and power are part and parcel of the dynamic of temporal fragmentation of the ideal. There is no release from the responsibility of thinking about thinking in the penumbra of error. That is our ethical calling.

On the threshold of a great abyss, we stand witness, bedeviled by the urgency of naming, as the sacred irrupts anew. When worlds of meaning are at stake, we can ill afford to disavow responsibility for the metaphysics of sovereign imaginaries.