I The First Cut: Making and Mapping Distinctions between Law and Religion
What is law? What is religion? And what sort of relation is implied by their conjunction? Does the phrase “law and religion” describe a fusion, a dichotomy, or something else? Such questions might appear either too basic or unanswerable, depending on one’s perspective. To complicate matters further, the directive posed to us by the editors of this volume is to look for areas of overlap – of congruence or even identity – between these two categories that are normally viewed as mutually exclusive. So, we must sketch a picture that recognizes identity-within-difference, or at least convergence-within-distinction, between law and religion.
In perusing the existing scholarly literature in the relevant disciplines, I find a basic lack of agreement, and thus of clarity, concerning what distinguishes and what unites “law and religion.” For many lawyers who choose to operate strictly within the confines of doctrine, it is often taken for granted what both law and religion are. Law consists of the constitution, statutes, case law, and other authoritative norms that are the basis for deciding a case. Religion is a bit more problematic, but can be defined through the manner in which such legal sources have demarcated religion from nonreligion. The fact that “religion” (e.g. as “freedom of religion”) appears in these sources of law is a clear indication that religion is something that is an object of law: a word, originally drawn from natural language, that must be given legal meaning and effect. Only recently have some dissenters begun to argue that the legal system constructs religion as an object, and thus brings it into being – or at least distorts and deforms it – in a manner that belies its independent existence.Footnote 2 When courts construe what legally protected “religion” is, they are, for all practical purposes, theologizing, and in this regard, filling the role formerly played by inquisitors when discriminating between orthodoxy and heresy. Strictly speaking, the separation of law from religion that is supposedly the hallmark of legal secularism is impossible. This perspective obviously implies a form of mutual interdependence of law and religion, or at least a dependence of religion on law, but not, I think, of the sort intended by our editors.
What happens if we consider religion outside of the judicial process, and move beyond current legal doctrine to consider history and anthropology? Historians of religion, such as myself, are intimately familiar with the increasingly prevalent claim that “religion” is a second-order term that bears the imprint of modern, European (and thus post-Christian) culture and that, when used outside of this culture, must be applied with caution and, usually, an asterisk or scare quotes. There are also arguments that something like the idea of religion has been recognized and demarcated through concepts and special terms in premodern and non-Western cultures. (We shall see Ivan Strenski’s version of this argument shortly.) This demarcation of “religion” is often against “politics,” as in the medieval Catholic distinction between two spheres of authority: that possessed by the sacerdotium, or priestly power, and that of the regnum, or royal/imperial power. This distinction was arguably grounded in Holy Scripture, with Jesus’s injunction to “Render therefore to Caesar”Footnote 3 and his disclaimer that “my kingship is not of this world,”Footnote 4 and was embodied in the legal institution of the Roman Catholic Church. So much of this background has rooted itself into our brains and languages that we (meaning English-readers) often assume the naturalness of the distinction between Church and State, here capitalized, as they often are, to signal their fictive personhood, or indeed metaphysical substantiality. Such a separation can hardly apply in the same way to cultures where this institutional division has not occurred.Footnote 5 Incidentally, this already highlights the erroneousness of the claim that the “separation of Church and State,” without further qualification, is a distinctive feature of secular societies; the idea of such a separation grounded the Roman Catholic Church’s claim to an independent authority.
What about the conjunction indicated by the term “religious law”? A few years ago I participated in a conference that posed the question whether religious law has a right to exist in modern, secular societies. The phrase “religious law” was understood by all, including myself, to describe the laws of particular religious communities: for example, Roman Catholic canon law, Jewish law, Islamic Shari’ah, etc. This makes sense under the current order, where an ostensibly secular and universal law confronts the normative traditions of communities that aim to practice a limited form of self-government and, perhaps, of legal pluralism. However, for more abstract and general scholarly purposes, this concept of “religious law” obviously depends on the prior definition of certain groups as “religious” and not merely as, for example, minority groups, diasporic cultures, or voluntary associations.Footnote 6 “Religious law” then means just the laws regulating such groups. This is clear enough, and may serve for some pragmatic purposes, but as it depends on circular reasoning, it lacks a theoretical foundation. The other meaning of “religious law” is laws pertaining to religious matters, and arguably runs into the same tautology or logical regress, unless we can identify what such matters are.
Historians used to debate whether law was originally religious or not, meaning whether in ancient times it would have made sense to speak of “law” and “religion” as separate domains. In the nineteenth century, Henry Maine argued that Hindu law, as represented by the Laws of Manu, was originally religious, as it more closely resembled Leviticus than the Roman Institutes. He extended this to all systems of law in their primitive stage of development: “For Manu, though it contains a good deal of law, is essentially a book of ritual, of priestly duty and religious observance; … There is no system of recorded law, literally from China to Peru, which, when it first emerges into notice, is not seen to be entangled with religious ritual and observance.”Footnote 7 Maine’s characterization of Hindu law followed earlier Christian parallels between Hindus and Jews, and reflected the idea that religious laws are not “proper” laws: not rational, modern, secular. This thinking was parochial: the Sanskrit term dharma (as in Mānavadharmaśāstra, one name for Manu’s text) cannot be translated simply as either “law” or “religion”; it encompasses both of these concepts and extends also to ritual performances. The indigenous category describes a unified conception to which the composite term “religious law” may be applied only as an approximation, and an anachronistic one at that.
Arthur S. Diamond argued, conversely, that there was never a time when religion and law – meaning the norms that govern the mundane order – were not regarded as distinct.Footnote 8 David Daube took a moderate position on the question. Noting scholarly bias in favor of “the theory that in the early life of nations all precepts were religious precepts, the separation of law and religion being achieved at a more advanced stage of civilization,” he declined to affirm or deny this theory, and argued that in any case it would not be appropriate to generalize from one culture, such as that of ancient Israel as reflected in the Hebrew Bible, to all cultures.Footnote 9 Moreover, Daube provided examples of the sacralization of law – “how legal ideas developed into religious ideas under the hands of priests and prophets”Footnote 10 – one of these being the borrowing of the idea of redemption from debt as a metaphor for salvation in Jewish and Christian traditions.Footnote 11 As this example is discussed in Section VI below, I leave it aside for now.
The question of whether law was “originally religious” is indeed quite difficult to answer, even if we focus only on the Hebrew Bible. On the one hand, as Maine already noted, we know that substantial parts of the Pentateuch concern “priestly duty and religious observance” or more bluntly “ritual.” On the other hand, there is much of secular law there as well. In terms of historical development, it is noteworthy that the law codes of the Hebrew Bible appear much more “religious” in this sense than the older and related Code of Hammurabi. This is also true because the biblical laws, whether they have to do with ritual or secular matters (such as cases of assault or property damage), are presented as the product of divine revelation. Such observations imply a process of “sacralization” of law in the biblical milieu, along the lines of what Daube described. We know from other cultural contexts that “secular” and “religious” systems of rules can coexist: the Arthaśāstra or “Treatise on Politics” from ancient India is an example of the former, if there ever was one, and is of similar antiquity to the Laws of Manu: both are roughly two millennia old. Whereas Manu was written mainly by and for priests, there are examples of other, mainly later dharmaśāstra texts, such as the Nāradasmṛti, that are much more “secular,” in the sense that they are more concerned with, for example, commerce, and with norms enforced by the court, and less with ritual matters and the afterlife.Footnote 12Much more is at stake here than ancient history. Secularization – meaning the separation of law from religion, and with this, the reciprocal independence of each from the other – is part of the autobiography of modernity. Paradoxically, the idea of secularism itself is not nonreligious, but indebted in complex ways to Christianity, as Ze’ev Falk noted:
A few remarks must be made on the idea of the separation between law and religion. Separation, or rather secularization, may be defined as the emancipation of humanity from the religious dimension in general, and from clerical rule in particular. It must be understood that this has been a particular phenomenon in the history of Christianity, and must not necessarily play the same role in other religions, such as Judaism, Islam or mystical systems. Although many Christian churches resisted secularization, it is implied in the Christian dichotomy between God and Caesar, Civitas Dei and Civitas Terrena, as well as between spirit and body. Paul’s spiritualization of biblical law, drawn to its logical conclusion, means irrelevance of law for salvation, which in turn calls for secularization of law.Footnote 13
Falk accordingly rejected Diamond’s contention that law and religion were originally distinct in Judaism.Footnote 14 Falk’s argument anticipated some more recent arguments, including my own, that secularization was originally a Christian idea that, already in Paul, was directed against Mosaic law. Paul’s idea that the Gospel is a matter of grace (charis) rather than of law (nomos), or of the spirit rather than the letter of the law, sharpened a distinction between law and religion in a way that had profound consequences, not only for Christian-Jewish relations but also for the entire trajectory of European culture. I have traced how the traditional Christian division of the Mosaic law into three separate categories – natural or moral law, civil or judicial law, and ceremonial law – informed the separation of religion from both law and ritual, particularly during and after the Protestant Reformation.Footnote 15 The idea that the ceremonial law had been abrogated by the Gospel went back to Paul, but was deployed by Protestants against both Jews and Catholics in the process of redefining religion as a matter of belief or interior piety. These categories were not indigenous to Jewish tradition, although the latter did identify certain Mosaic ritual laws as ḥukkim or “statutes” and debated whether these were susceptible to rational explanation.Footnote 16 Evolutionary accounts of secularization echo older Christian supersessionist narratives according to which religion may have been originally “legalistic” and “political,” but was freed from such mundane things by the Gospel. At the same time that religion became spiritual – a matter of grace – law and politics became nonreligious or secular. “Render therefore to Caesar,” indeed. What was excluded (marginalized, disestablished) was largely ritual. This can be put tentatively into the form of an equation: (RELIGIOUS LAW) – (RITUAL) = (SECULAR LAW) + (SPIRITUAL RELIGION).
Comprehending the relationship between law and religion has been complicated dramatically by the legacy of Christian bias regarding the Mosaic law, Torah, or halakhah. Christian polemics against Judaism as legalistic and ritualistic accelerated during the Reformation, and influenced ostensibly scientific scholarship on the Hebrew Bible, such as Julius Wellhausen’s reconstruction of the Pentateuch, which relegated many ritual laws, particularly those regarding sacrifice, to a later phase of priestly consolidation of the Torah in order to rob them of the prestige of origins.Footnote 17 For Wellhausen and many other Protestants, the contrast between “the law and the prophets” described a dichotomy between priestly law and true, inspired religion that aligned with the opposition between Judaism and (authentic) Christianity. In this way, the Gospel could be interpreted as a restoration of the original, prophetic impulse of ethical monotheism, against corruptions introduced by priests, first within Judaism and then within Roman Catholicism.
II The Second Cut: Auctoritas versus Potestas
The first attempt to make sense of “law and religion” has ended with an impasse. We have seen that in some cultures these are combined, while in others they are distinct; and that our propensity to regard them as describing two different domains of culture has been conditioned both by Christian theology and by secularism. In short, these are not natural and perennial categories, but cultural and, therefore, historically determined ones. We cannot, in fact, define what either “law” or “religion” in general is with cross-cultural, trans-temporal validity.However, despite having contributed myself to the genealogical critique of the ostensibly secular opposition between law and religion, I do not think we need to abandon all hope of the possibility of finding something analogous to this distinction in many other societies. Such an analogy is necessarily structural, and systematic. It depends, not on any substantive definition of either law or religion, but rather on the recognition of the dynamic and fluid tension that characterizes the relationship between these two domains. This argument builds from the previously mentioned efforts to stabilize the category of religion as against that of politics. Ivan Strenski has argued that the opposition between religion and politics is better understood as that between auctoritas and potestas, or “authority” and “power.”Footnote 18 These distinctions go back to republican Rome, where auctoritas originally referred to the ability of the Senate, inter alia, to authorize and thus legitimize an action that would be carried out by another who had potestas. In 494 CE, Pope Gelasius I sent a letter to Emperor Anastasius I Dicorus, in which he appropriated these terms to distinguish their respective spheres of authority:
Two there are … by which this world is chiefly ruled, namely, the sacred authority [auctoritas sacrata] of the priesthood and the royal power [regalis potestas]. Of these the responsibility of the priests is more weighty in so far as they will answer for the kings of men themselves at the [divine] judgment. Know … that, although you [Emperor Anastasius] take precedence over all mankind in dignity, nevertheless you must piously bow the neck to those who have charge of divine affairs and seek from them the means of your salvation. … For if the bishops … recognizing that the imperial office was conferred on you by divine disposition, obey your laws so far as the sphere of public order is concerned … With what zeal ought you to obey those who have been charged with the administration of the sacred mysteries?Footnote 19
Gelasius’ idea that the Pope’s auctoritas and the Emperor’s potestas governed different domains, but that the Pope ultimately, because of the greater importance of salvation, possessed the higher authority, came to be known as the doctrine of the Two Swords, and served as the basis for the Christian opposition between the spiritual and temporal powers, the ecclesiastical and civil laws, etc.Footnote 20Extending Gelasius’s distinction beyond its original context of application, Strenski argues that religion is (mainly) a type of auctoritas that, for this reason, can never be finally and fully separated from politics, which is (mainly) a type of potestas. These two qualities exist in a dialectical relationship, in which religion is a second-order form of politics, as it were, that can lend meaning and legitimacy to the existing order, or conversely serve as a basis for contesting and even changing that order.
While a given “religion” may display both potestas and auctoritas, no “religion” is conceivable without auctoritas. Yet, some religions are conceivable in the absence of potestas. But, on the other hand, while politics too reveals a mixture of both potestas and auctoritas, it is conceivable without auctoritas, but no political entity lacking potestas is conceivable. While elements of this definition are well rooted in everyday notions of religion, I think the definition takes us beyond mere recycling of everyday understandings of religion. It puts the notion of authority forward – ultimate, sacred, and transcendent authority, to be precise.Footnote 21
Strenski thus describes a Venn diagram in which auctoritas/religion and potestas/politics overlap, but do not entirely converge. Indeed, he laments the loss of understanding of auctoritas as this has been collapsed into the mere exercise of worldly power or potestas, a collapse that he finds in, among others, Michel Foucault. Strenski attributes our inherited imbalance or rather conflation between these two qualities to the Pope’s own power grab, his attempt to assert a plenary temporal potestas in addition to his spiritual auctoritas: “Both Church and emperor claimed to rule by virtue of their potestas. We thus think about power as a unified field rather than as an arena of complementary differences because the Church simply ceased representing the spiritual alone.”Footnote 22 According to Strenski, the Roman Church was the first absolutist state, and the Pope the first absolute sovereign.Footnote 23 Strenski therefore appears to retell a version of the story of modernity as a decline – a fall from grace – that began either with the Investiture Controversy or a bit later, in the High Middle Ages.
Strenski generalizes the auctoritas-potestas distinction beyond its immediate historical context, applying it, for example, to the distinction between Brahman (priest) and Kṣatriya (ruler) and between dharma (justice) and artha (power) in ancient India.Footnote 24 Some would object to this generalization on the grounds that it makes a parochial, medieval Christian category appear universal. However, this objection is arguably itself too general, as any set of categories that might be deployed in cross-cultural comparison must originally be borrowed from some natural language and historical tradition. I am quite sympathetic to Strenski’s effort to find a definition of religion in structural rather than essentialist terms. Having acknowledged that there is no substantive definition of religion that possesses any cross-cultural or trans-historical validity, we must pursue such structural or systems-theoretical redescriptions of religion, or abandon any engagement with the data.
Yet I think we can (and must) improve upon Strenski’s effort. One route forward lies in mapping out more precisely what is meant by the distinction between auctoritas and potestas. As previously noted, this predates Gelasius, and actually goes back to pagan Rome, where the distinction was applied to describe two different types of political power.Footnote 25 The Senate had auctoritas, the power to authorize or legitimate an action, while the magistrate had potestas, the power to implement or carry out that action. Although the terms were not always used consistently through the centuries of the Republic and subsequent Empire, and auctoritas could be attributed to persons of esteem who lacked political office, a useful contemporary analogy would be to the distinction between legislative and executive power under the modern doctrine of separation of powers.
To understand this better, let’s look at some of the later iterations of this distinction, as laid out in Table 7.1.
|Two Swords in Medieval Christianity ca. 500–1500 CE||Ecclesiastical/ Spiritual Power (Sacerdotium)||Civil/ Temporal Power (Regnum)|
|Adolphe Thiers (19th c.)||“Ruling”||“Governing”|
|Emanuel Sieyès (late 18th c.)||Constituting Power||Constituted Power|
|Walter Bagehot (19th c.)||Dignified Power||Efficient Power|
|Modern parliamentary democracy||King/Queen (or President in some parliamentary systems)||Prime Minister|
No one can approach to an understanding of the English institutions, or of others which, being the growth of many centuries, exercise a wide sway over mixed populations, unless he divide them into two classes. In such constitutions there are two parts (not indeed separable with microscopic accuracy, for the genius of great affairs abhors nicety of division): first, those which excite and preserve the reverence of the population – the dignified parts, if I may so call them; and next, the efficient parts – those by which it, in fact, works and rules. There are two great objects which every constitution must attain to be successful, which every old and celebrated one must have wonderfully achieved: every constitution must first gain authority, and then use authority; it must first win the loyalty and confidence of mankind, and then employ that homage in the work of government. … The Queen is only at the head of the dignified part of the constitution. The prime minister is at the head of the efficient part. The Crown is, according to the saying, the “fountain of honour;” but the Treasury is the spring of business.Footnote 27
The nineteenth-century formulations of Thiers and Bagehot show a lingering reference to divine right, and also perhaps to the idea of the mystical body of the sovereign, as opposed to his (or her) natural body.Footnote 28 The separation of powers continues in the distinction between the Queen and Prime Minister in the United Kingdom and that between the President and Prime Minister in certain other parliamentary democracies. The United States, as is well known, vests executive power in a President who is no mere figurehead. However, none of these modern versions of the separation of powers is particularly theological. A version of the division of powers is also found in the distinction in business corporations between the Board of Directors and the Chief Executive Officer.
The distinction between auctoritas and potestas was – and perhaps still is – best understood as a distinction internal to politics. It was not originally a theological distinction at all, but rather became sacralized through its assimilation by Gelasius. Because, as indicated also by its contemporary versions, this distinction has to do with a separation of powers that can be of an entirely mundane, political or economic nature, it appears, at first glance, less than ideally suited for the work that Strenski assigns to it: namely, the expression of the distinction between religion and (worldly) politics.
III The Third Cut: Sovereignty versus LawOr perhaps it is just that we have not yet understood the full implications of the distinction between auctoritas and potestas. Here Giorgio Agamben can be helpful, although as a non-Latinist I cannot evaluate the accuracy of all of his contentions. Agamben includes an important discussion of the distinction in his work, State of Exception, which is itself part of the Homo Sacer series.Footnote 29 He assimilates auctoritas to the idea of a self-legitimating sovereignty that superintends and is capable of suspending the legal order, which is identified with potestas:
Let us try to better define the nature of this “power that grants legitimacy” in its relation to the potestas of the magistrate and the people. … Under extreme conditions … auctoritas seems to act as a force that suspends potestas where it took place and reactivates it where it was no longer in force. It is a power that suspends or reactivates law, but is not formally in force as law. … The juridical system of the West appears as a double structure, formed by two heterogeneous yet coordinated elements: one that is normative and juridical in the strict sense (which we can for convenience inscribe under the rubric potestas) and one that is anomic and metajuridical (which we can call by the name auctoritas). The normative element needs the anomic element in order to be applied, but, on the other hand, auctoritas can assert itself only in the validation or suspension of potestas. Because it results from the dialectic between these two somewhat antagonistic yet functionally connected elements, the ancient dwelling of law is fragile and, in straining to maintain its own order, is always already in the process of ruin and decay. The state of exception is the device that must ultimately articulate and hold together the two aspects of the juridico-political machine by instituting a threshold of undecidability between anomie and nomos, between life and law, between auctoritas and potestas. … As long as the two elements remain correlated yet conceptually, temporally, and subjectively distinct (as in republican Rome’s contrast between the Senate and the people, or in medieval Europe’s contrast between spiritual and temporal powers) their dialectic – though founded on a fiction – can nevertheless function in some way. But when they tend to coincide in a single person, when the state of exception, in which they are bound and blurred together, becomes the rule, then the juridico-political system transforms itself into a killing machine.Footnote 30
Explaining all of the nuances of this passage within the context of Agamben’s larger project is impossible here. What is important is to recognize that he assimilates the distinction between auctoritas and potestas to that between sovereignty and law, in accordance with Carl Schmitt’s understanding of sovereignty as the power to suspend the law or to declare a state of exception (i.e. a state of emergency). Rather than some weak, effete power of authorization, such as is still possessed by the English monarch, who technically speaking must assent to all laws approved by Parliament, and could in theory refuse to do so, the form of auctoritas described by Agamben is the fulsome power possessed by the sovereign prior to the taming of divine right during and after the seventeenth century. Auctoritas coincides with the power to intervene in a normative order by creating, suspending, or breaking (and potentially remaking) that order. A similar force was attributed by some Christian theologians in the High Middle Ages to God as an omnipotent sovereign, whose absolute power (potentia dei absoluta) was capable of disrupting or suspending the existing framework of laws (potentia ordinata) through miracles and divine commands.
Agamben further identifies auctoritas as a personal quality held by an auctor, such as a pater, princeps, or dictator.Footnote 31 He does not hesitate to identify this quality with Max Weber’s notion of “charismatic authority”: “‘Charisma’–as its reference to Paul’s kharis [grace] (which Weber knew perfectly well) could have suggested – coincides with the neutralization of law … .”Footnote 32 This reinforces the connection of auctoritas with sovereignty, understood as the power of ultimate decision held by one ruler (monarch) in his or her personal capacity. The danger according to Agamben is that, in modern times, auctoritas and potestas have collapsed together, so that there is no separation of powers, no relationship of checks and balances, but only totalitarian dictatorship. Table 7.2 (next page) may assist in appreciating these associations.
|SOURCE OF OPPOSITION||“SOVEREIGNTY”||“LEGALITY”|
|Christian scholastic idea of God’s two powers||Absolute Power (potentia/ potestas dei absoluta)||Ordained Power (potentia ordinata)|
|Christianity (Paul, Romans)||Grace (charis)||Law (nomos)|
|Max Weber||Charismatic Authority||Legal/ Bureaucratic Authority|
As I have demonstrated elsewhere, such theological ideas concerning absolute power shaped the background of the early-twentieth-century debate between Carl Schmitt and Max Weber.Footnote 33 Weber explicitly opposed charismatic authority to legal authority, and identified the former with the power to suspend the law: “genuine charismatic domination knows no abstract laws and regulations and no formal adjudication. … [I]in a revolutionary and sovereign manner, charismatic domination transforms all values and breaks all traditional and rational norms: ‘It has been written … but I say unto you … ’”Footnote 34 (Weber quoted Jesus’s statement from the Gospels twice as an illustration of charisma.) He argued further that charisma has declined in an increasingly bureaucratic modernity. Schmitt pointed out that such views echoed the radical Protestant attack on miracles, which coordinated with the prohibition of absolute sovereignty. Weber’s account was not a neutral history, but a partisan “political theology.”
There is, according to Weber and Schmitt, not only a structural opposition between sovereignty and law, but also an historical divide, according to which sovereignty has declined or been repressed in an increasingly rule-governed modernity. This historical process is what we call “secularization” or “disenchantment.” Scrutinizing this process as it relates to law will help us further along the road to understanding the relationship between law and religion.
IV The Fourth Cut: The Disenchantment of Law
In Economy and Society, Weber sketched a compelling account of the evolution of legal traditions away from the supposedly ad hoc justice imposed by dictators, khadis, prophets, and other charismatic figures. The early stage of society involved decision by fiat. The chieftain would pronounce a verdict without having to explain the reasons. This resembled very closely what we refer to in other contexts as divine command.Footnote 35 Oracles and ordeals were examples of the judicial processes appropriate to this stage. Weber explicitly invoked William Blackstone’s eighteenth-century description of English common law judges as “oracles” to illustrate the traces of charisma in that legal tradition. Blackstone meant to laud their wisdom and discretion as interpreters or even deliverers of the inspired judgments of a divine justice. These verdicts were singular and independent; they were made on a case-by-case basis, through the judge’s personal authority and not necessarily in strict reliance on prior judicial precedent. Such verdicts therefore appeared as a form of quasi-magic, also as having pragmatic effect, much in the manner in which the ritual pronouncements of the Catholic Church worked ex opere operato to bring a new state into being. As we would now say, they were “speech acts.”
The onward rationalization of the law involved shedding such vestiges of judicial charisma, although obliterating every trace of this was and remains impossible. This progressive disenchantment of the law formed the background of Schmitt’s argument for bringing back an irruptive sovereignty. Schmitt’s polemic depended on at least two arguments: first, that the disenchantment of sovereignty (charisma, miracle, divine command) was a choice or a dogmatic position taken by certain Protestant theologians, which could therefore be dismissed as a partisan “political theology”; and second, that sovereignty could not really be excluded in any case, as there would always be a need for an ultimate authority capable of making, suspending, or changing the law.Footnote 36
Schmitt’s opponents included the legal positivists, such as Hans Kelsen, who were the spiritual descendants of Jeremy Bentham. Bentham had already staked out a position, in its own way as extreme as Schmitt’s, and at the opposite pole from his. Where Schmitt was all about the exception, Bentham did his best to exclude this, through the elaboration of a comprehensive, plain-language code (the “Pannomion”) that would supposedly neither require nor allow any interpretation or discretion on the part of the individual judge.Footnote 37 Directly attacking Blackstone’s idea that judges were “oracles,” Bentham sought to remove the taint of arbitrary discretion from the common law by a thorough rationalization of its statutory basis. In this project he followed directly in the footsteps of certain Deists, such as Matthew Tindal, who had earlier attacked miracles, divine commands, and similar states of exception to natural law.
Both Bentham and Schmitt were extremists. Neither position was tenable. We still need both law and sovereignty. Yet the apparent fact that neither seemed quite willing to allow this suggests that modernity has reached a condition of polarization with respect to these two qualities. We have already seen echoes of this polarization or “breakdown” in both Strenski and Agamben, each of whom has diagnosed the collapse of the (formerly functioning) dynamic tension between auctoritas and potestas. The original lament of this sort arguably came from Weber, who described modernity not only as “disenchanted” and “rationalized,” but also as an “iron cage” (stahlhartes Gehäuse).Footnote 38 Applied to law, this would represent the condition in which legal norms have lost all charismatic authority and, with this, their legitimacy and power to command obedience.
Whereas Weber’s opposition between charisma and law now appears to capture rather precisely part of the modern condition, it is important to recognize and acknowledge what Schmitt already pointed out: namely, that the stark opposition between charisma and law itself represents a particular perspective that may with some justice be attributed to the Protestant exacerbation of the Pauline divide between charis and nomos.Footnote 39 As described in Section I of the present chapter, this is a dichotomy that appears indebted, on the one hand to Christian anti-Jewish polemics, on the other to Protestant anti-Catholic polemics. Both of these polemics insist that charis is not nomos – that grace has nothing to do with law. It is widely known that Weber’s own framing of this dichotomy was influenced by Rudolph Sohm, the Protestant theologian who described the downfall in the early Christian community as having occurred when the original mode of charismatic leadership was replaced by a legally defined process of the election of bishops.Footnote 40 At that point, the Gospel was corrupted into the Roman Catholic Church. That Sohm’s account was just a latter-day version of the Protestant trope that miracles ceased in the early church has been ignored by most scholars, certainly by those who still regard Weber’s theory as scientific and “value neutral.”
Is it really true that charisma is the antithesis of law? To begin to answer this question, I turn now to reflect upon the historical context out of which such categories emerged – namely, Hebrew biblical law – and specifically, to the question of what charis might have meant originally in the Gospels.
V The Fifth Cut: Charis versus Nomos, or “Justice and Righteousness”?
In a series of erudite and incisive essays, Bernard Jackson argues that law as depicted in the Hebrew Bible originally was not separate from charisma, but was dependent on the personal authority of the judge, who was regarded as the embodiment of justice.Footnote 41 The Pauline valorization of the “spirit” of the law over its “letter” still reflected a situation in which judgments were thought to be delivered through divine inspiration. Originally, there was no contradiction between law and prophecy, such as was retrospectively (and anachronistically) projected onto the Hebrew Bible, especially by Christians. Prophets, like kings and other judges, were capable of delivering legal judgments, but also of suspending or changing the law. Law was seen as something more than a decision rule that was foreordained and meant to be applied strictly. Indeed, at first the law was not even written down; and even after it was committed to writing, such written rules were neither co-extensive with, nor exhaustive of, the whole of the law. Only gradually was the codified law applied more strictly and the prophetic dimension marginalized, as illustrated by the later Rabbinic story of Akhnai’s oven, which expressed the exclusion of miraculous authority in favor of democratic decision by the rabbis. This development, as Jackson notes, appears to represent a defensive response to Jesus’s prophetic message, which had placed charismatic authority in starker opposition to the law.Footnote 42 It was reinforced by the idea that prophecy had ceased, an idea that existed in Judaism before it was deployed by certain Church fathers against Christian heretics and, later, resuscitated by Protestants as a weapon against the Roman Catholic Church as well as enthusiasts within their own ranks.
Jackson invokes Weber’s account of charisma and its institutionalization in the course of his account.Footnote 43 Both agree that charisma represents a sovereign power to suspend the legal norm in a particular instance, also by appeal to miracles and consultation with oracles.Footnote 44 Yet where Weber described a dichotomy between charismatic and legal authority, Jackson argues that the original form of authority in ancient Israel was “monistic,” meaning that it combined charisma and law.Footnote 45 Only after prophetic charisma had been excluded as a source of justice, partly in response to the challenge posed by Christianity to the Law, did a “dualistic” system arise in Judaism, in which a written statute was interpreted by rabbis qualified through ordination (semikhah). Ordination itself had earlier been charismatic, but came to be conferred “as a result of qualification in the yeshivah.”Footnote 46 This ancient history closely parallels Sohm’s account of the institutionalization of authority in the early Christian community, which was adapted by Weber in framing the opposition between charismatic authority and legal/bureaucratic authority, or “office charisma” (Amtscharisma). Yet where Jackson describes this as a relatively late development that replaced an earlier “monistic” system, Weber (and, a fortiori, Sohm) described a permanent struggle between charisma and law that was illustrated already by the conflict between prophets and priests in the Hebrew Bible.Footnote 47
The starkness of Weber’s dichotomy reflects its theological origins. As Agamben (and Carl Schmitt and John Potts, among others) pointed out, the original, theological source for Weber’s notion of charismatic authority was Paul’s distinction between charis or grace and nomos or law, as employed in Romans, which paralleled some other Pauline oppositions, such as that between spirit and flesh, or spirit and letter.Footnote 48 This distinction has been fateful for the subsequent history of Christian-Jewish relations, as well as for the European Christian understanding of the relationship between law and religion as a disjunction and rigid dichotomy. But where does it come from?
Several points might lead us to expect that this opposition had an origin in law. One is Paul’s claim to have been a student of Rabbi Gamaliel, an expert in Torah or law; another is the fact that Paul evidences a familiarity with legal concepts and forensic rhetoric; a third is that the term nomos had by this time become the standard word in Hellenistic Greek for “law”; a fourth is that, as used by Paul, nomos appears to be a designation for the Torah or the Mosaic law.Footnote 49 Weighing against this expectation is the traditional theological interpretation of charis as divine grace, which stands as a positive hindrance, if not an insurmountable obstacle. The theological perspective is that grace has literally nothing to do with law, that it comes out of the blue, ex nihilo, or as an uncaused cause. (This is, indeed, the source of the dichotomy.) We must attempt to get behind this perspective in order to appreciate what charis might have meant, precisely in relation to its original, Hebrew context.A perusal of Strong’s Concordance suggests that charis (grace, gift, credit, or thanks) was used by Paul in several instances specifically to denote the character or motivation of an action that exceeded what was required by the law.Footnote 50 For example, Romans 4:4 (NKJV) states: “Now to him who works the wages are not counted as grace [charis], but as debt.” This usage parallels that in the Gospel of Luke.Footnote 51 At Luke 6:32–34 (NKJV), Jesus states:
But if you love those who love you, what credit [charis] is that to you? For even sinners love those who love them. And if you do good to those who do good to you, what credit [charis] is that to you? For even sinners do the same. And if you lend to those from whom you hope to receive back, what credit [charis] is that to you? For even sinners lend to sinners, to receive as much back.
Charis here appears to refer to a principle of justice or mercy that suspends the strict application of a legal or commercial norm, such as that pertaining to the payment of wages or the repayment of debts. It has been suggested to me that charis here may be translating the Hebrew term chesed, which is usually rendered into English as “mercy.”Footnote 52 This makes sense also in light of the understanding of Hebrew biblical law that Jackson has articulated, in which the application of law was not rigid but flexible, and was legitimated through the personal authority of the judge, who supposedly possessed divine inspiration. In such a system, precisely as Weber described, charismatic authority is capable of suspending otherwise valid legal norms. Jackson argues persuasively that such an expansive conception of justice was expressed by the common phrase mishpat utsedakah, or “justice and righteousness,” discussed also by Moshe Weinfeld: “Weinfeld sees ‘justice and righteousness’ as particular responsibilities of the king, reflected in a number of institutions whereby he liberated his subjects from economic (and other forms of) oppression.”Footnote 53 Such forms of liberation included the releases from servitude and debt that occurred in conjunction with the declarations of deror and misharum, which are described below. Jackson contends that in Weinfeld’s account righteousness (tsedakah) “becomes a kind of equity, designed to temper the strictness of law, the latter being conceived (in modern terms) as the application of legal rules by judges who have no discretion to resolve disputes in any other way.” Jackson’s main disagreement with this interpretation is that it ignores the fact that judges also had the responsibility, discretion, and latitude to be “righteous” and, when necessary, to deviate from the strict letter of the law.
What is significant, in connection with our discussion of charis as a possible translation of chesed, is that this Hebrew term also appeared sometimes in such binomial formulas, as Weinfeld notes: “During the Second Temple period, the concept of ‘justice and righteousness’ developed and deepened. Instead of the pair of concepts, justice and righteousness …, we find righteousness and kindness (tsedakah and chesed), which acquired a broader meaning.”Footnote 54 He glosses the latter term as follows: “Chesed, ‘kindness,’ is identical with goodness and mercy. It is not a characteristic that is congruous with strict justice, since if it were to be applied in court it would otherwise interfere with the execution of justice, which must be untempered by partiality.”Footnote 55
In other words, we have evidence of the prevalence of a concept of equity in the Second Temple period that appeared to function precisely as the notion of charis in the New Testament examples provided above. Whether or not charis was translating chesed, a version of this concept existed prior to the Gospel revelation, and was therefore not created out of nothing. This concept denoted, at its core, the power to suspend or deviate from a strict application of the law in the quest for a higher justice that was informed by mercy. As such, it referred to what we have been calling “sovereignty” as distinguished from “law.” It would not be correct to regard charis/chesed as a nonlegal principle, any more than it would be correct to regard sovereignty as having nothing to do with law. I emphasize this point because many of us who come from a European, Christian background have been conditioned to regard grace as a nonlegal and specifically religious category. This understanding, I suggest, has been influenced by a particular reading of Paul, who indeed at times highlights the opposition between charis and nomos (or between the spirit and the letter of the law) to such an extent that these two principles no longer appear to belong together, as part of a comprehensive concept of justice. Paul’s emphasis on the disjunctive rather than the conjunctive aspect of this binomial shaped the later idea of a separation between religion and law, as well as Weber’s sharp bifurcation between charisma and legal authority.
VI The Sixth Cut: The Pardon Power As Illustration of the “Religious” Principle in Relation to Law
Let’s take stock of where we are in the argument. The emerging picture suggests that our ordinary, common-sense understanding that law and religion are separate or even antithetical has been conditioned by secularism and, before this, by Christian theology, which (especially in its post-Reformation manifestations) has tended to identify religion as “wholly other,” as transcendent of the mundane world. When religion comes into contact with law, it appears precisely as a zone of freedom, as a suspension of the law. Yet these very qualities are the same ones that identify what we call “religion” as a form of sovereignty, which is also characterized by the power to suspend the law, through the declaration of a state of exception.Footnote 56 If Christianity and secularism have introduced a “cut” between religion and law, as reflected in the dichotomy between charis and nomos, this cut performed an incision into the body of law itself, a body that was formerly unified in the person of the sovereign judge, who acted through divine inspiration. As Jackson put it, justice went from being “monistic” to “dualistic.”
But is it really the case that religion may be nothing more than a particular expression of the power of the sovereign who suspends the law? Let us test this thesis again using the example of the pardon power. The pardon power provides an especially good case for a historical reconstruction because, among other things, we can trace it from our contemporary era all the way back to ancient Mesopotamia. As we have just seen, Weinfeld notes the debt releases called andurarum or misharum as examples of the sovereign’s power to do equity.Footnote 57 Although the evidence is equivocal, in ancient Mesopotamia such debt releases appear to have coincided with several types of events: a threat to the polity resulting from foreign armies or a famine; the first full year of a king’s reign; and the Akitu or New Year’s festival.Footnote 58 These were sovereign acts that sometimes coincided with an actual state of emergency, in the event of which there were pragmatic reasons that counseled removing the burden of debt from citizens whose attentions should be focused fully on addressing the immediate threat.Footnote 59 When occurring at the beginning of the first full year of a king’s reign, the debt release resembled a reset or “clean slate” that also served to create gratitude for the new ruler; in this respect it paralleled the acts of largesse that in later European contexts also coincided with the entry into sovereignty.Footnote 60 In the case that such a debt release synchronized with the New Year’s festival, it had the additional connotation of a cosmic renewal in which the king, who according to some accounts underwent ritual humiliation, was subsequently victorious over the forces of evil. Agamben has seen in such festivals a “state of exception” that marks a moment in the life of sovereignty.Footnote 61
In the Hebrew Bible, such suspensions of the law were called deror – liberation – and included release from debt (shemitta) as well as from slavery. During the Sabbatical, every seventh year, debts were canceled and slaves were freed. Every seventh Sabbatical, thus every forty-nine or fifty years, a Jubilee was declared, on which farmland was also returned to its original owners. Although there is some evidence that the Sabbatical was practiced, the Jubilee appears to have remained a piece of utopian social legislation. The main innovation in the Hebrew Bible as compared with the ancient Near Eastern precedent was to take this power out of the hands of the king and to place the cancellation of debts on a regular schedule. What was originally a sovereign act was converted into a legal institution.Footnote 62 However, kings or judges could still grant pardons in individual cases.David Daube identified the incorporation of an originally legal idea of redemption into Jewish and Christian tradition as a central metaphor for salvation, a process that began already in the Hebrew Bible with the institutions of the Sabbatical and Jubilee years.Footnote 63 Gradually, the idea of a “redeemer” (go’el), one who buys something back from debt, and of a future redemption that involved a literal liberation from bondage, was extended to a more general idea of salvation:
This idea [of redemption], of fundamental importance in the Old Testament and Talmud, in the gospels and all Christian doctrine, has its root in early law. It is one might justly say, an outstanding example of a legal notion being taken up and made into a religious notion by priests and prophets. … In the end, the notion of redemption was even more spiritualized, and God thought of as redeeming His people not only from physical slavery but also from the fetters of sin and death.Footnote 64
The importance to the identity of the Israelites of the deliverance from slavery in Egypt during the Exodus and the Conquest of Canaan served to reinforce this metaphor.Footnote 65 Daube focused on the root of the concept as “red-emption” or buying back,Footnote 66 although he noted that already in the case of most places in the Hebrew Bible where the notion of redemption appears, no actual payment is implied.Footnote 67 Still the concrete basis of this metaphor in a legal transaction shone through.Footnote 68 Daube contended that “that peculiar element from the socio-legal sphere, the idea of salvation by means of ‘red-emption’, … occurs in no other system.”Footnote 69
In some cases, indeed, the use of the idea to denote the one who redeems the blood of the victim of a murder (go’el ha-dam), an archaic idea connected to the lex talionis, continued to inform the notion of a spiritual redeemer who removes the stain of sin and death.Footnote 70 Daube noted the application of this idea to Jesus in the Gospels, and added that “In the Middle Ages, the legal element in the idea of redemption by God … At times perhaps … was over-emphasized: salvation, with some theologians, became almost a business transaction.”Footnote 71 Here he may have been referring to Anselm of Canterbury, whose explanation of the mechanism of salvation through Jesus’ death on the cross in Cur Deus Homo has been interpreted by some critics as based on a crude materialism resting on feudal notions of justice and the institution of Wergeld, or payment as compensation for a homicide.
Redemption, as Daube understood it, is a legal concept that specifies the conditions under which a debt may be canceled or repurchased. It literally meant “buying back.” The process that Daube described, namely the metaphorical extension into the religious domain of this originally legal or commercial idea, appears to represent a key case of the sacralization of law. However, the situation is quite complex, and there are considerations that weigh against the conclusion that these ideas were ever purely legal, if by this is meant “nonreligious.” To begin with, the notion of repurchasing something that has been devoted for sacrifice is a common one in the Hebrew Bible.Footnote 72 While this qualifies as an economic transaction, it also pertains to a key form of ritual praxis and, as such, can hardly be termed nonreligious. Significantly, in the uses of charis described in the preceding section, the idea of debt (or lending) appears, but there is no mention whatsoever of a legally defined repurchase. The notion of charis that appears in Paul and Luke coincides with that of the pardon in its original etymology as “par don,” meaning by free gift rather than by obligation.
More importantly, in terms of the foregoing analysis, is that the liberation achieved by the andurarum/deror, like individual pardons, was a sovereign act, even when performed by a judge, rather than a legal act in the narrow sense. In the deror of the Hebrew Bible, this act has been legalized and routinized to some extent, although its close connections with sovereignty arguably persist.Footnote 73 This remained the case when subsequently, in Christian traditions, redemption was theologized as an act of divine grace, an act that was itself an expression of God’s sovereignty and omnipotence. In 1300, long after the period Daube describes, the institution of the Jubilee was revived by the Popes as part of the economy of indulgences and penances that developed in the High Middle Ages. Starting from 1400, every twenty-five years (save in 1800, due to the Napoleonic wars) has witnessed a Jubilee in Rome that grants the compliant pilgrim a plenary indulgence from sin. This institution depends on the Pope’s “power of the keys” or authority to bind and loosen the fetters of sin, and to open or close the doors of heaven. Such pardon powers are traditional attributes of sovereignty.
In recent centuries, this aspect of sovereignty is sometimes called the “dispensing power,” meaning the sovereign’s ability to dispense with or suspend a legal order. Because one of the main applications of this power consists of the granting of pardons, it has also been referred to as “the royal prerogative of mercy,” which is one of the “absolute” as opposed to “ordinary prerogatives” of the king. It appears clear that this power was established through analogy to God’s omnipotence. Kathleen Moore states: “Pardon has historically been understood as an act of grace, a gift freely given from a God-like monarch to a subject.”Footnote 74 Daniel Franklin agrees: “Prerogative powers permitted the king to exceed the established laws of the state. This was considered permissible inasmuch as the king, as the embodiment of the state, was a representative of god on earth.”Footnote 75 In his book on the development of habeas corpus, Paul Halliday traces this power to the same source, namely the divine right of kings:Footnote 76 “For that is what the royal power to create sanctuary or to grant pardon was: a miracle by which the normal rules of law, which might inflict the ultimate pains on the subject’s body, were suspended.”Footnote 77 As Halliday notes, habeas corpus, or the power to command that the king’s subjects be brought before the Court of King’s Bench for justice, often served as the preliminary to the granting of a pardon. The concept of “equity” advanced by the King’s Bench, also in opposition to the “law” of the Court of Common Pleas, might be regarded as a lesser, related power.
Both Halliday and Franklin refer to the pardon as an example of the “absolute” as opposed to the “ordinary prerogative” of the king.Footnote 78 These were later names for what were called in the High Middle Ages the absolute and ordained powers, powers that were attributed originally to God and extended by analogy to human sovereigns, such as Popes and Emperors. (See Table 7.2.) Together with divine commands, the miracles in the Hebrew Bible were one of the chief sources of evidence for God’s omnipotence.Footnote 79 It is this older idea of divine and royal sovereignty, founded on the miracle, that Schmitt contended had been excluded by the modern ascendancy of law. The pardon power is a residue of this absolute power.
The plenary extent of the pardon power is striking. A pardon was held by numerous authorities to remove the guilt as well as the punishment attaching to an offense. In the thirteenth century, Henry Bracton stated that the pardoned “is like a new born infant and a new man, as it were.”Footnote 80 In the seventeenth century, Matthew Hale said that “Exemption from guilt and punishment comes properly enough under this title, viz. by pardon. … The king’s pardon in such cases is so strong that it takes away the guilt in foro humano as well as the punishment.”Footnote 81 In Ex parte Garland (1866), the US Supreme Court stated that a presidential pardon makes the pardoned “as innocent as if he had never committed the offense.”Footnote 82 Both the idea of being born again, and that of granting dispensation from the guilt (or culpa) as well as the punishment (or pœna) attached to an offense, were originally theological ideas applied in the case of penances and indulgences in the Roman Catholic Church. Although there are certain limits on the pardon power today, the roots of that power lie deep in the notion of absolute sovereignty formerly expressed by the divine right of kings.
Based upon the foregoing summary, we should have to conclude that the modern pardon power is not, as Daube thought, a “sacralized legal notion,” but instead, as Schmitt put it, a “secularized theological notion.” Aspects of the power arguably continue to betray its religious roots: for example, the fact that a discharge from all debts in bankruptcy occurs in the seventh year, like the Sabbatical year in the Hebrew Bible.Footnote 83
However, the larger conclusion is that it in fact makes no sense to speak of “sacralization” or “secularization.” These terms have significance only in the context of an understanding of what “religion” means. And the entire thrust of our analysis has been that religion (meaning “religion in general”) does not exist as something separate from a total social order that is characterized by the dynamic interplay between law and sovereignty, defined as the authority to suspend the law. Where “religion” has emerged through the assertion of an independent sovereignty (as in the case of Gelasius, or already with Jesus), or in the form of a differentiated institution (such as the Roman Catholic Church), there is nothing, objectively speaking, that permits us to identify such a sovereign as “religious” except through its contrast with another mode of sovereignty that is defined, in opposition, as “secular.” Even in this case, the doubleness (or duplicity?) of this opposition remains, since it continues to depend on the original interplay between sovereignty and legality (or auctoritas versus potestas), that is now itself reduplicated, through the Two Swords. Where Gelasius said, Duo sunt, Thomas Hobbes answered that the Church (ekklesia) was merely a political community like any other: “And therefore, a Church, such a one as is capable to command, to judge, absolve, condemn, or do any other act, is the same thing with a civil commonwealth … Temporal and spiritual government are but two words brought into the world to make men see double and mistake their lawful sovereign.”Footnote 84
Hobbes’s reduction of religion only aimed to prevent the multiplication and confusion of overlapping sovereignties. The recognition of religion as a form of politics does not remove the need for sovereignty itself, either as the power that superintends (and suspends) law, or as the hope for redemption, grace, or a higher form of justice. What we call “religion” has given voice to this hope, and often asserted a sovereign independence in its name.
I can no longer tell, at the end of this study, where law ends and religion begins. These two qualities appear to be intertwined, like Siamese twins or (as in the case of another metaphor deployed by Paul against the Law) Jacob and Esau, who struggled even in the womb for supremacy. Esau was entitled to rule by law, meaning the right of primogeniture. Yet he sold his birth right to Jacob, who also stole his brother’s blessing which, although acquired through trickery, could not be recalled. The story of these twins suggests again that law is not enough, since its rigid forms can be broken or defeated. The question instead is, who shall be sovereign?
In a recent survey of modern Jewish thought, Leora Batnitzky homes in on its central tension: Does Judaism – a tradition suffused with rules and rituals – constitute a religion?Footnote 1 If this term is understood to emphasize the centrality of faith and creed, it seems inapposite to the hyper-normativity of Judaism. But discarding this label would call Judaism’s legitimacy into question, at least from the vantage point of many who contemplated this matter at the dawn of modernity. Much of the creativity in the conceptions of Judaism that were formulated by leading Jewish thinkers from the eighteenth century onward emanated from grappling with this seminal challenge.Footnote 2
The origins of this tension are usually traced to the sweeping transformations introduced by Jewish emancipation, including the consequential encounters of Jewish thinkers with Christian (especially, Protestant) theology.Footnote 3 Prior to the eighteenth century, on the conventional account, Judaism was widely conceived of as a “religion of laws.“ But this characterization glosses over variations within a tradition that evolved over many centuries.Footnote 4 Thus, substantial scholarship has explored the critical dialectic between “law” and “spirituality” in medieval Jewish thought.Footnote 5 Even in classical writings, one can discern a subtle and suggestive discourse surrounding these themes.
The latter needs to be underscored in light of contrary claims currently being advanced in the field of religious studies. Decrying the anachronism of applying the concept of “religion” to premodern works, scholars have urged us to “imagine no religion” in conjuring up the world of antiquity and late antiquity. In this vein, a recently published book under this title argues that various terms that appear in classical writings are mistranslated as “religion” and “theology.”Footnote 6 But the absence of analogous terminology in older works is hardly dispositive. While the mature constructs of modern theology may be only of late vintage, substantial “religious” impulses or emphases relating to beliefs,Footnote 7 attitudes, or values beyond the system of norms are arguably embedded in much historic material.Footnote 8 Only a careful excavation of early literature can reveal their imprints.
The chapter below turns back many centuries before the period covered by Batnitzky’s survey in order to further interrogate various conceptions of “Judaism” that are reflected in formative writings from antiquity and late antiquity. It seeks to illuminate whether earlier iterations of “Judaism” were so fully aligned with law and praxis that they constituted the entirety of religious life and its ultimate achievement. Or, alternatively, whether one can already perceive in earlier traditional discourse an acknowledgment, or even an articulation, of a “religious” or “theological” nucleus apart from the normative order.Footnote 9
Instead of an elusive attempt to reconstruct the core of “Judaism” (which has been ventured by others with debatable degrees of success),Footnote 10 one can gain precious insight about its essence by concentrating on its measure of sacrilege or heresy.Footnote 11 What a tradition considers to be utterly contrary to its core reveals much about its foundations. This chapter therefore concentrates on conceptions of the “bad man” in early Jewish discourse to learn about where it draws its most fundamental lines.Footnote 12 In a concentrated form, this is vividly captured by the hermeneutic legacy of one seminal biblical passage.
A A Biblical Source and Its Afterlife
The conception of Judaism as a “religion of laws” derives in the first instance from the paramount role of norms in the Torah.Footnote 13 A plethora of commandments – including civil, criminal, cultic, and ritual prescripts – fill this corpus. Moreover, divine revelation at Sinai consists entirely of mandatory canons. In stipulating the observance of these laws, God enters into a binding covenant with Israel. By pledging its steadfast commitment to upholding these commandments, Israel in turn becomes a “priestly kingdom and holy nation” (Exodus 19:6). Legal obeisance is thus necessitated not for social or political reasons, but as a sacred imperative.Footnote 14 It is for this reason that when the term “Torah” is translated into Greek it is rendered as “nomos.” The central theology of the Torah revolves around its laws.Footnote 15Numerous scholars have articulated this vital feature of the Torah, perhaps none more cogently than Moshe Greenberg.Footnote 16 Contrasting the nature of biblical law with earlier cuneiform codes of the Ancient Near East, Greenberg highlights the religious character of the former as its distinguishing essence. His description (which focuses particularly on biblical criminal law) culminates with the striking implications of this phenomenon:
In the biblical theory the idea of the transcendence of the law receives a more thoroughgoing expression … .There is a distinctively religious tone here, fundamentally different in quality from the political benefits guaranteed in the cuneiform law collections. In the sphere of the criminal law, the effect of this divine authorship of all law is to make crimes sins, a violation of the will of God.Footnote 17
Formulated more generally, according to the Torah, violating any law is tantamount to sinning against God.
Adducing support for this proposition, Greenberg singles out one Pentateuchal source, Numbers 15:30–31.Footnote 18 To appreciate how this source functions as a proof text requires further background. As will soon become evident, Greenberg, if anything, is understating the dramatic implications of these verses.
The middle section of Numbers 15 (verses 22–31) records a pericope (the “Numbers pericope”) relating to different modes of violating an unspecified transgression, which is comprised of two parts. Part one (15:22–29) addresses the sacrificial atonement for an inadvertent transgression of a community or an individual,Footnote 19 while part two (15:30–31) describes the fatal punishment for an individual transgression that is committed “with a raised hand” (Hebrew “beyad ramah”). Due to the juxtaposition of the two parts, the latter phrase has been interpreted by most scholars, including Greenberg, to refer to a transgression that is committed intentionallyFootnote 20 (a dissenting viewpoint interprets it as a publicly defiant act, which seems to be the meaning of “beyad ramah” elsewhere in the Bible).Footnote 21 The contrast between the two parts of the pericope on this (majority) reading is plain. Whereas an inadvertent transgression can be atoned for by (a specific regimen of) sacrifices, an intentional transgression cannot, and is instead punished harshly.
What is the nature of the transgression discussed in this pericope (in either part)? The verses invoke the generic formulation of the transgression of the “commandments.”Footnote 22 This implies that the second part of the pericope refers to an intentional violation of any prohibition.Footnote 23In light of this, the second part’s description of the gravity of a single violation and its ensuing punishment is startling (far exceeding Greenberg’s measured formulation that a violation constitutes a sin). Here are the verses in full:
30But whoever acts intentionally (beyad ramah), whether a native or an alien, blasphemes (megadef) the Lord, and shall be cut off (venikhrata) from among the people. 31Because of having despised the word of the Lord (devar Hashem bazah) and breached his commandment (mitsvato hefer), such a person shall be utterly cut off (hikaret tikaret) and bear the guilt (avonah bah).
A person who intentionally violates the law – any law – blasphemes God, the ultimate form (or act) of sacrilege. By transgressing God’s word, he or she despises it; and by failing to uphold a commandment, he or she annuls it. An act of such gravity saddles its perpetrator with guilt. Echoing an ominous refrain, Scripture declares a ruthless punishment of excision for the transgressor (variants of the term karet appear three times in these verses).Footnote 24 More than a sin (Greenberg’s characterization), a violation of a norm according to these verses constitutes a shattering transgression which evokes a devastating response. The pericope emphatically projects legal obeisance as the measure of religious devotion.Footnote 25
In an important analysis of this pericope, Aryeh Toeg likewise draws attention to the extraordinary rhetoric it employs when describing the consequences of a single transgression (i.e., blaspheming God, etc.). In order to account for this charged language, Toeg posits that these verses are formulated with a “prophetic vocabulary” that conveys the experiential dimension – rather than the normative implications – of sin.Footnote 26 By appealing to an alternate genre to explain these verses, Toeg rightly magnifies their religious intensity. But their semantic cannot be stripped of its normative content which is integral to their meaning.Footnote 27 Rather, the brunt of these verses emanates from the way they yoke religion and theology to legal obeisance. Only by conceiving of religion as primarily filtered through law, can such radical verses about the consequences of a transgression be comprehended.Footnote 28
Given the potency of these verses, the question of their legacy becomes critical. These verses confront all subsequent readers and interpreters, who must determine whether they can assimilate, or abide by, their plain, and radical, implications about the theological weight of law. Alternatively, if they reinterpret these verses (by rendering “beyad ramah” and its other loaded phrases in a different manner) to refer to something other than an intentional violation of law as the root of religious blasphemy this will inevitably lead to a revised construction of the theological sphere. The exegesis of these verses thus serves as a prism for subsequent interpreters to negotiate the foundational relationship between religion and law.
Notwithstanding the singular tone and content of the Numbers pericope, it takes on much significance in early postbiblical exegesis.Footnote 29 Below I will examine two sets of exegetical traditions which (for the most part) advance profoundly different approaches toward these consequential verses. A dominant trope in Qumran literature, where these verses have a surprisingly pervasive afterlife, builds upon their plain sense in constructing a religious world view structured around the normative order. In contrast, rabbinic literature largely pivots in another direction, articulating novel forms of religious heresy that are increasingly differentiated from the sphere of law. While both traditions contain counter voices and overlap to a certain extent, their overall divergent emphases are unmistakable. These diverse traditions advance alternate paradigms of law and religion.
II Qumran Literature
The distinct formulations and verses of Numbers 15:30–31 figure prominently in the Qumran corpus, especially in a couple of passages I will analyze below. In fact, Elisha Qimron notes that the Scrolls routinely employ the Scriptural term “beyad ramah” as a standard label for an intentional transgression (alongside other terms for an inadvertent one, such as “shogeg”), instead of the common biblical and rabbinic term, “mezid.”Footnote 30 This usage reflects that the Numbers pericope is often understood at face value in this corpus (i.e., following the majority reading).
If the term “beyad ramah” signifies an intentional violation, however, it should not be construed merely as a technical term. As Aryeh Amihay has argued, this phrase evidently retains a loaded biblical resonance in Qumran.Footnote 31 While Amihay bases this term’s fuller semantic upon several biblical passages (such as Exodus 14:8, Numbers 33:3, etc.), most of the Qumran references that invoke this term appeal specifically to Numbers 15:30 (as recently stressed by B. Reynolds).Footnote 32 As noted, in the Numbers pericope the term means any intentional transgression; and violating any such transgression, according to the pericope, constitutes a blasphemy against God. By repeatedly citing this term, then, Qumran authors are presumably evoking this meaning, and making its strong nexus between law and religion a centerpiece of their ideology (a secondary set of Qumran texts discussed below function differently).Footnote 33 In certain Qumran texts this ideology is in fact especially pronounced. Building upon the Numbers pericope, they project normative perfection as essential to the religious identity of the sect, and therefore consider transgressions to be particularly damaging to the religious fabric of the community.Footnote 34A vivid instance of the latter is found in the opening passage of the foundational rules of the Community (the “rules of volunteering”) in 1QS 5.Footnote 35 Explicitly invoking the term “beyad ramah” toward the end, the passage throughout expands on its themes. After delineating the formative covenant of the sectarian community, which revolves around punctilious observance of the laws of Moses as explicated by the priestly sons of Zadok, the passage draws a stark contrast between its members and the wicked sinners. A new initiate to the community must openly pledge his allegiance:
He should swear by the covenant to be segregated from all the men of injustice who walk along the path of wickedness.
The Scroll’s account of the latter is particularly significant:
For they are not included in his covenant since they have neither sought nor examined His decrees in order to know the hidden matters (nistarot) in which they err by their own fault and because they intentionally violated (beyad ramah) revealed matters (niglot).
Invoking the terminology of the Numbers pericope, the passage extends its scope to encompass a collective rather than an individual, and to repeat violations rather than a single transgression. Further, it conflates the two parts of the pericope in characterizing the “men of injustice.” Negligently violating hidden, that is, unrevealed, prohibitions (corresponding to the inadvertent transgression of Numbers 15:22–29)Footnote 36 as well as intentionally violating revealed ones (corresponding to the intentional transgression of 15:30–31), the ignoble sinners are those who continually transgress the law. They are fated to a ravaging punishment, an intensification of the damning fate of Numbers 15:
this is why wrath will rise up for judgment in order to effect revenge by the curses of the covenant, in order to administer fierce punishments for everlasting annihilation (kalah) without there being any remnant. Blank
Expanding upon the Numbers pericope in these various ways, the passage magnifies the stakes of legal obeisance.
Another remarkable passage with a similar ideological thrust appears later in (certain recensions of) 1QS. Establishing a penal scheme for a sectarian member who violates a single transgression, it relies explicitly on the Numbers pericope. In its bold implementation of the biblical template, it likewise revises certain of its salient features.The passage opens by underscoring the meticulous normative standards demanded from members of the sect (referred to here as the “council of holiness”):Footnote 38
Blank These are the regulations by which the men of perfect holiness shall conduct themselves, one with another. All who enter the council of holiness of those walking in perfect behavior as he commanded.
What happens when a member violates these binding rules depends on the mode of the offense. Initially, the passage relates to an intentional violation (“beyad ramah”), based on Numbers 15:30–31:
anyone of them who breaks a word of the law of Moses intentionally (beyad ramah) or fraudulently (remiyah) will be banished from the Community council and shall not return again … .
Next, the passage relates to an inadvertent transgression based on the earlier verses of the Numbers pericope (Numbers 15:22–29):
However if he acted inadvertently (bi-shegaga) he should be excluded from pure food and from the council and they shall apply the (following) regulation to him: ≪He may not judge anyone and [he may] not [be a]sked any advice for two whole years≫ … if he has not sinned again through oversight until two full years have passed. Blank.
This passage shares the orientation of the 1QS 5 passage, but each is more exacting in certain respects. Both underscore that transgressions violate the core religious identity of the sectarian community. The 1QS 8:20–27 passage further states that a single intentional violation leads to banishment from the Sectarian community.Footnote 39 In other words, it affirms the plain sense of Numbers 15:30–31 in all its severity.Footnote 40 The passage diverges (at least in focus), however, from the 1QS 5 excerpt in terms of who responds to the intentional transgressor. Whereas 1QS 5 describes the intensified punishment of divine annihilation (kalah)Footnote 41 for transgressors, according to 1QS 8 the penal agent is the communal council who administers a punishment of expulsion. Indeed, in this sense 1QS 8 departs from the Numbers pericope, as well. According to the Numbers pericope, an intentional transgressor who sins against God receives a heavenly punishment of excision (repeated threefold in the verses), and an inadvertent one atones by bringing a sin offering. In 1QS 8 these are translated into communal punishments to be meted out by the council, the former by expulsion and the latter by way of a temporary ban.Footnote 42
In order to illuminate the crux of 1QS 8, Aharon Shemesh attempts to reconstruct its theological underpinnings by linking it to other sections of the Rule of the Community and the Damascus Covenant.Footnote 43 For instance, he argues that an intentional transgressor is expelled by the council because his actions expose him as a “son of darkness,” as described in 1QS 3 (or, perhaps more explicitly as a “wicked person,” as described in 1QS 5). This also implies that following his ejection by the council, the transgressor will be vanquished by God.Footnote 44 Similarly, Shemesh explains the temporary expulsion of an inadvertent transgressor as based upon a larger theology of exile in the Scrolls.Footnote 45 As intriguing as these cross references are, they gloss over the locus of this passage, which is brought into sharper relief by its juxtaposition with 1QS 5. Instead of a heavenly damning of sinners, here the theological drama all plays out within the normative structure of the community. The religious constitution of the community is preserved by normative perfection; the spiritual state of an individual member turns on his legal obeisance; and his theological destiny is determined by the council’s penal pronouncement. Religion is filtered through law, and law alone.
Several passages in the Qumran corpus offer variants of this paradigm.Footnote 46 In the proximate 1QS 8:15–17 passage, for instance, an intentional transgressor (“beyad ramah”) is punished with (temporary) exile (not a permanent expulsion). According to CD 10:3, such a figure is only disqualified from delivering testimony. In other words, he remains nominally within the sectarian community, but is pushed to its margins in terms of his legal and social status.Footnote 47 Both of these sources likewise operate within a religious worldview that is highly legalistic (i.e., where an intentional transgression elicits a legal response, and the boundaries of the religious community are maintained by legal sanction), but calibrate the penal and social consequences in a different, and more lenient, manner. All three texts (CD 10, 1QS 8:15–17 and 20–27) echo the Numbers pericope in treating an intentional transgression as a decisive breach of the community’s religious ethos of legal perfection.
Certain scholars attribute the severe Qumran punishment of an intentional transgressor recorded in 1QS 8:20–27 to the reality of sectarian life where maintaining social conformity was feasible.Footnote 48 While this context may make such an arrangement attractive or at least possible, it is hardly inevitable. When considered alongside the various passages surveyed above, 1QS 8 emerges as one response among several alternatives.Footnote 49
Other Qumran writings (such as 1QS 6–7, 4Q266, frag. II, 4Q270, frag. 7i, 15–19), in fact, diverge from this paradigm and do not define the religious fabric of the sectarian community in normative terms. Operating with a dual construct similar to 1QS 8:20–27 (and arguably based upon its Scriptural foundation, the Numbers pericope), these texts crucially differ in terms of what triggers a harsher response. Instead of invoking the phrase “beyad ramah,” they introduce terms like “moes,” to despise, or “libgod,” to rebel, to characterize the underlying wrong.Footnote 50 In other words, the grounds for expulsion from the community is a brazen rejection of God and the religious values of the community.Footnote 51 The foundational sin is thus not committing a legal violation, but repudiating the community’s principal commitments. Prefiguring certain aspects of rabbinic literature, this strand reflects a secondary voice in the Qumran corpus.Footnote 52
The dominant strand in Qumran writings, however, advances a religious order bounded within a normative frame. Here, the Numbers pericope openly serves as a foundational text, and “beyad ramah” (in its plain sense) functions as a pivotal term.Footnote 53 Further, a couple of passages expand upon this legalistic foundation in ways that exceed Scripture. 1QS 5 envisions a bloc of transgressors, a foil to the community, who will suffer divine castigation; and 1QS 8 circumscribes a covenantal community whose religious ethos is defined by law, and whose boundaries are controlled by law. By accentuating, augmenting, and implementing the striking paradigm of the Numbers pericope, this strand epitomizes a conception of Judaism as a religion of laws.
III Rabbinic LiteratureThe primary rabbinic source that elaborates on the Numbers pericope – a range of homilies in the Sifre spread over two sections (111–12) – contains certain traces of the legalistic sectarian position.Footnote 54 In its opening paragraph (111), the Sifre records the well-known view of the rabbis which interprets the Numbers pericope as referring specifically to the transgression of idolatry (more on this shortly),Footnote 55 but first the midrash considers (and subsequently rejects) another option (Sifre 111, ed. Kahana, lines 1–5):
“But if you unintentionally fail to observe all these commandments (Numbers 15:22)”Footnote 56: … Scripture here speaks of idolatry. You say idolatry, but perhaps (it speaks of his transgressing) all of the commandments of the Torah …
And similarly in the continuation of the midrash (ibid., lines 5–7):
“And it shall be, if by the eyes of the congregation it were done in error (Numbers 15:24)” – Scripture hereby singles out one mitzvah. And which is that? (the injunction against) idolatry. You say it is idolatry, but perhaps it is (any) one of all the mitzvoth stated in the Torah …
In other words, the midrash registers the plain sense of Scripture (presumably following the majority reading).Footnote 58 In fact, certain rabbinic traditions arguably interpret (the latter part of) the Numbers pericope in this manner. Thus, Sifre 112 (ed. Kahana, line 50) records an exegetical gloss attributed to R. Akiva on Numbers 15:31,Footnote 59 “a soul—who sins intentionally (mezidah).”Footnote 60 Likewise, the teaching of R. Hanania b. Gamliel in tractate Makkot (3:15) that “one could lose their life for committing just one sin” may echo this position.Footnote 61
Most rabbinic constructions of the Numbers pericope, however, eschew the literal interpretation for a variety of reasons, and do not identify a single violation of any prohibition as the root of the religious rupture which is depicted in its verses. A central question raised by these alternative hermeneutics is whether they signal a different conception of religion. On the literal understanding of the Numbers pericope (i.e., the majority approach), the essence of religion is comprised of legal obeisance; and therefore violating the law severs one’s relationship with God and the religious community. Do these other rabbinic readings operate with a similar template, or present a different kind of religious order that is not solely structured around norms?The most familiar rabbinic interpretation of the Numbers pericope – advanced in lieu of the plain meaning in the paragraph above – limits its subject matter to the prohibition of idolatry.Footnote 62 The following paragraph addresses the opening part of the pericope:
“But if you unintentionally fail to observe all these commandments (mitzvoth) (Numbers 15:22)”: … Scripture here speaks of idolatry. …
Similarly, a subsequent paragraph (Sifre 112, ed. Kahana, lines 59–61) interprets the latter part as involving an intentional violation of idolatry.Footnote 63At first blush, narrowing the Numbers pericope in this manner still assumes a religious order that is defined by norms, but only deems an intentional violation of a severe prohibition to have the dire consequences described in the pericope’s latter part. This is the implication of a related Sifre teaching that groups idolatry with other legal prohibitions of a similar scale (i.e., prohibitions which are punishable by karet).Footnote 64 It is also possible that idolatry is singled out as a cardinal prohibition which is in a category of its own, or emblematic of all the commandments.Footnote 65 The first paragraph concludes in this vein (Sifre 111, ed. Kahana, lines 5–10):
It is, therefore, written “And if you err and do not do all of these commandments (Numbers 15:22)”: This comes to define the one commandment. Just as one who transgresses all of the commandments divests himself of the yoke (poreq ol), and breaks the covenant (mefer berit), and reveals the Torah (megaleh panim ba-Torah), so, he who transgresses one commandment (idolatry) does the same, as it is written, “to destroy His covenant (turning to the worship of other gods …) (Deuteronomy 17:2–3).” And the covenant is nothing other than Torah, as it is written, “These are the words of the covenant, etc. (Deuteronomy 28:69).”
But this justification raises another possible explanation for why the Sifre distinguishes this particular sin. Idolatry is not just a cardinal prohibition, but a flagrant betrayal of God. Arguably, this is the underlying thrust of the above passage (committing idolatry divests oneself of the yoke, etc.).Footnote 66 The fundamental theological affront of idolatry is likewise underscored in a neighboring passage in the Sifre that employs a somewhat cryptic metaphor to capture its audacity.Footnote 67
These alternate explanations reflect two different ways of conceptualizing the prohibition of idolatry:Footnote 68 a normative perspective, where idolatry is classified as a “first-degree” offense; and a theological perspective, where idolatry epitomizes the ultimate religious betrayal.Footnote 69 Notably the other two specific prohibitions that surface in rabbinic constructions of the Numbers pericope – committing blasphemy against GodFootnote 70 and rejecting the rite of circumcisionFootnote 71 – share a similar duality. These are cardinal commandments, where the violation and heresy are interwoven.
A A Novel Series of Rabbinic Interpretations of the Numbers Pericope
The rabbinic interpretations of the Numbers pericope examined so far are thus arguably grounded in a traditional normative discourse.Footnote 72 In other passages, however, the Sifre betrays a decidedly different tone.Footnote 73 When unmoored by the midrash from its plain sense, the pericope is open hermeneutically, with each verse, and even each clause, potentially pregnant with distinct meanings.Footnote 74 A string of rabbinic traditions fill this interpretive void in striking ways.Footnote 75
Beyond their notable number and range, these traditions diverge-- to varying degrees-- from the interpretation of “beyad ramah” as an intentional transgression.Footnote 76 Rather than limiting the pericope to a particular prohibition, and assimilating it into a familiar halakhic discourse where religiosity is measured by legal obeisance, they posit novel dimensions or forms of irreligiosity.Footnote 77 Ultimately, the Sifre here transitions into an altogether different discourse of sin and punishment.Footnote 78 Wittingly or not, the rabbis here articulate elements of a religious worldview that is not bound within the normative order.Here are the relevant excerpts from the Sifre on Numbers 15:30–1 (Sifre 112, ed. Kahana, lines 37–57):Footnote 79
(1) “But whoever acts intentionally (beyad ramah) (Numbers 15:30)” – This is one who reveals the Torah (megaleh panim ba-Torah), like Menasheh ben Hezkiah.
(2) “[he] blasphemes the Lord (Numbers 15:30)” – This is one who sits and renders a ridiculous homily in front (alt. to the face) of the Lord (Ha-Maqom), saying (for example): “He should not have written in the Torah ‘And Reuven went [in the days of the wheat harvest …] (Genesis 30:14)’” … .Footnote 80
(3) “Because of having despised the word of the Lord (Numbers 15:31)” – This is a Sadducee. “and breached his commandment (Numbers 15:31)” – This is a heretic (apiqoros).
(4) Another interpretation: “Because of having despised the word of the Lord (Numbers 15:31)” – This is one who reveals the Torah (megaleh panim ba-Torah). “and breached his commandment (Numbers 15:31)” – This is one who breaks the covenant (mefer berit) of the flesh (circumcision). From here R. Elazar Hamodai said: One who desecrates the offerings, cheapens the festivals, breaks the covenant (mefer berit) (of circumcision) of our father Abraham or reveals the Torah (megaleh panim ba-Torah) – even if he has performed many commandments, it were best to thrust him from the world.
(5) If he says: “The entire Torah I accept, except for this one matter” – [This is] “Because of having despised the word of the Lord (Numbers 15:31).” “The entire Torah he (Moses) said from the mouth of the Holy One but this thing he said on his own” – [This is] “Because of having despised the word of the Lord (Numbers 15:31)”. …Footnote 81
The Sifre’s range of interpretations covers uncharted terrain that lies beyond the familiar normative landscape. According to many scholars, Paragraph (1) refers to the violation of a prohibition in a brazen or defiant manner,Footnote 82 which arguably expresses, if you will, a mens rea of heresy or insurrection;Footnote 83 Paragraph (2) and certain parts of Paragraph (4) involve various disdainful attitudes; Paragraph (3) refers to a heretical or sinful persona, rather than a prohibited act or mode of conduct;Footnote 84 and other parts of Paragraph (4) and Paragraph (5) describe a rejection of the covenant, Scripture or law. In sum, the sins depicted in these sections of the Sifre are attitudinal, ideational, or theological.
One can sort this catalog of sins (alongside others referenced in proximate passages in the Sifre) across a spectrum that ranges from standard norms to increasingly novel ones, with a waning link to formal praxis.Footnote 85 Beginning with an intentional violation of a single or all commandment(s) (which the Sifre at least registers), the Sifre refers to: a violation of an arch commandment; (arguably) a violation of an arch commandment that is expressive of a rejection of a core theological principle (God’s supremacy or the covenant); a violation of a single commandment in a defiant manner (arguably expressing a mens rea of heresy or insurrection); a rejection of the (normative) authority of Scripture or the law; a disdainful attitude toward religious institutions (such as holidays or sacred objects); a rejection of a core theological principle (e.g., resurrection); a heretical or sinful persona (that transcends any particular transgression, attitude, or idea);Footnote 86 and (arguably) a betrayal or blasphemy of God. A conventional normative framework is expanded to encompass increasingly original sins of a theological nature.
At times, the shift in discourse evident in the Sifre is more subtle, but also revealing. Consider in this vein a notable difference in emphasis among a couple of the paragraphs cited above. Paragraph (5) describes a challenge to the authority of the Torah and its precepts – either by rejecting the Torah’s integrity or by limiting the scope of its divine origins. The sacrilege is not measured by a violation of law per se, as much as by undermining the stature of the Torah or the legal traditions. Still, the heresy in question implicates the supreme standing of biblical law.
A seemingly related interpretation (2), however, discards these normative trappings. Here the rabbis likewise describe an impugning of Scripture, but the critique is expressed as scornful mockery.Footnote 87 Moreover, this interpretation – which construes the Scriptural words, “[he] blasphemes the Lord (Numbers 15:30)” – depicts the jeering homilist confronting Scripture’s Author, “sit[ting] and render[ing] a ridiculous homily in front (alt. to the face) of the Lord …. ” Moving beyond the status of Scripture and the law, the heretical challenge targets God, as it were. Note that on its terms, the homilist-blasphemer is not denying the divinity of the Torah, but challenging God’s immaculate wisdom that is manifest in it. The crux of the verbal assault is personal.
B The Triad As Reflecting a Shift in Rabbinic Discourse
A more dramatic shift in the rabbinic discourse surrounding the Numbers pericope can be discerned when one focuses on the literary record of three phrases that appear in the Sifre and elsewhere in rabbinic literature: “megaleh panim ba-Torah,” “mefer berit,” and “poreq ol.”Footnote 88 In Paragraph (1), the Sifre invokes the phrase “megaleh panim ba-Torah;” and in the opening part of Paragraph (4), the commentary on one lemma refers to it as well, while the commentary on the next lemma refers to “mefer berit.” As discrete phrases, they presumably designate distinct prohibitions.Footnote 89 However, in an earlier passage in Sifre 111 (cited below), these two phrases, preceded by “poreq ol,” form a litany of three offenses. This same triad is recorded in several places in rabbinic literature. Beyond individuated offenses, they seem to comprise a single category (either they share a common denominator, or are conflated into a single wrong).Footnote 90 The very formulation of a triad may reflect a revised conceptualization of grave sin.What is the nature of this triad, and how is it (or are they) violated? A partial response can be gleaned from the hermeneutic elaboration recorded in Sifre 111 (ed. Kahana, line 8):
… one who transgresses all of the mitzvoth divests oneself of the yoke (poreq ol), and breaks the covenant (mefer berit), and reveals the Torah (megaleh panim ba-Torah) …
As represented in this passage, the triad is not a label for a sin(s), but the derivative consequence(s) of a cumulative transgression. One who violates all the commandmentsFootnote 91 causes the drastic fallout that is captured by this threefold formulation. The triad is thus associated with established norms.Footnote 92
What is fascinating is that elsewhere (in tannaitic literature) the nature of the triad (or a couple of its elements) differs. In three tannaitic sources – Mishnah Avot, Baraita Shavuot, and Tosefta Sanhedrin – the triad is projected as a stand-alone sin (or sins), which is unrelated to other violations. Moreover, each of these tannaitic sources accents different characteristics of the triad that diverge from conventional norms.
Thus, the Mishnah in Avot (as it is paraphrased in the latter part of Paragraph (4) of the Sifre) includes two of the triad’s elements on a list of egregious modes of conduct or postures that can hardly be designated as standard violations. This is further implied by the conclusion which states (in the Sifre’s rendition) that if any item on the list was infringed, “even if he has performed many commandments, he deserves to be thrust from the world.”Footnote 93 The enumerated items differ from conventional prohibitions, and their gravity exceeds the ordinary normative metric.Footnote 94A baraita recorded in the Talmud underscores another essential characteristic of the sui generis triad:Footnote 95
Rabbi Judah the Prince says: For all transgressions that are stated in the Torah, whether one repented, or whether one did not repent, Yom Kippur atones, except for one who divests oneself of the yoke (poreq ol), and reveals the Torah (megaleh panim ba-Torah), and breaks the covenant (mefer berit). For these, if one repented, Yom Kippur atones, and if not, Yom Kippur does not atone.
Unique among all sins in terms of atonement,Footnote 96 the triad is openly contrasted with standard halakhic violations. Only the triad demands a more intensive atonement procedure in which repentance is indispensable (a requirement which arguably derives from the rabbinic interpretation of the final clause of Numbers 15:31, “and bear the guilt (avona bah)”).Footnote 97 In other words, the baraita classifies the triad as a more weighty category of sin(s).Footnote 98 To the extent that the triad consists of foundational, theological sins or heresies that are based on the sinner’s interior attitude or state, the necessity of repentance seems particularly apt.Footnote 99
Finally, a third tannaitic source, a Tosefta Sanhedrin passage linked to m. Sanh. 10:1 (knows as the opening Mishnah of Pereq Heleq), betrays other essential characteristics of the triad.Footnote 100 The Mishnah records a list of beliefs that preclude a person from a share in the “world to come (olam haba),”Footnote 101 including a person who denies resurrection (from the Torah),Footnote 102 rejects the notion of “Torah from Heaven,” and an apiqoros.Footnote 103 T. Sanh. 12:9 adds the triad (as well as one who pronounces the divine name)Footnote 104 to this list.
The placement of the triad alongside these other wrongs implies that they all share a similar quality. All are arguably theological or creedal sins.Footnote 105 What elsewhere is conceived of as a triad involving normative violations is now associated with heresies.
A crucial signal of the theological nature of the Tosefta’s discourse here is the striking punishment it declares for breaching the triad – a forfeiture of a share in the world to come. Notice how this diverges from the standard penology of rabbinic literature. Ranging from lashes to capital punishment (and encompassing karet and mitah beyedei shamayim),Footnote 106 the standard penology is imminent and corporeal. In contrast, the forfeiture described in the Tosefta is deferred and (perhaps also) noncorporeal.Footnote 107 Or to formulate it differently, it is a heavenly punishment that fits a theological sin.Footnote 108The roots of this transfiguration can be traced back to a different passage in the Sifre. Recall how the Numbers pericope records variants of the term karet three times in delineating the punishment for sinning “beyad ramah.” Certain rabbinic hermeneutics interpret these verses to be referring to a standard form of karet. For instance, the rabbinic tradition that identifies the pericope’s transgression as idolatry must understand the verses in this manner (since karet is clearly specified as the punishment for idolatry alongside numerous other prohibitions enumerated on a seemingly exhaustive rabbinic list).Footnote 109 But other traditions in the Sifre examined above that construe the pericope as referring to novel forms of sinning cannot brook this interpretationFootnote 110 (since these sins are not included on this rabbinic list).Footnote 111 Moreover, these are not the kinds of sins that warrant standard punishments, which are only meted out for prohibited actions. As the conception of the pericope’s underlying sin evolves in the Sifre, the punishment must as well. This seems to be the implication of R. Akiva’s teaching in Sifre 112 (ed. Kahana, lines 62):
“shall be utterly cut off (hikaret tikaret) (Numbers 15:31)”: “cut off (hikaret)” – in this world; “utterly cut off (tikaret)” – in the world to come (olam haba). These are the words of R. Akiva …Footnote 112
Upon introducing the world to come, the rabbinic discourse surrounding the Numbers pericope withdraws from the standard penology of the halakhah and enters into a new realm.Footnote 113 What justifies this shift is in part the extraordinary rhetoric of the verses, including its ringing (and anomalous) repetitions of karet. An intensification of karet, according to this homily, signals a qualitative transformation. At another level, the shift is a function of nascent definitions of “beyad ramah” and the other key terms of the pericope in the Sifre.Footnote 114 As the religious rupture of the Numbers pericope defies a formal-normative discourse (which is also reflected in the revised conception of the triad that is recorded in the three tannaitic sources), a corresponding theological punishment must be formulated (or appealed to) by the Rabbis.Footnote 115 While the former discourse dominates rabbinic literature,Footnote 116 the latter – which is reserved for the most solemn religious sins or sinners – emerges in the rabbinic unpacking of this pericope.Footnote 117 These discursive traditions of the Sifre contribute to the formation of rabbinic theology, including its doctrines of penitence and the world to come.Footnote 118
The Numbers Pericope encapsulates in a few verses a seminal dimension of biblical religion. Employing exceptional rhetoric, Scripture describes a sinner’s frontal assault on the divine realm which leads to a catastrophic fallout. What precisely is the sin? The plain sense of Scripture according to most commentators is that a person intentionally violated any biblical prohibition. A breach of norms amounts to divine blasphemy.
When one examines the early reception history of this pericope in Qumran literature these themes are mostly intensified, even as a secondary voice is also registered. The Scrolls regularly invoke the terminology of the pericope to refer to any intentional violation, and central passages in the Rule of the Community use it as a template for delimiting the normative boundaries of the sectarian community. In one passage, the apparatus of law is further deployed to ensure legal obeisance, which is vital for the community’s socio-religious integrity. Law structures the community’s core religious identity.
Yet in a later exegetical phase recorded in rabbinic literature a marked metamorphosis transpires.Footnote 119 Despite certain traces of the plain sense of the Numbers pericope, rabbinic hermeneutics largely reject the notion that its subject matter is a standard prohibition. The striking rhetoric of the pericope is instead reinterpreted by the rabbis through a series of transformative teachings. Despite the dominance of halakhah in the spiritual worldview of the rabbis, these homilies expose an essential religiosity that eclipses the universe of norms. Likewise, notwithstanding the usual focus of the rabbis on concrete actions with this-worldly consequences, here the rabbis explore a spiritual sphere and anticipate the world to come.Footnote 120 New theological frontiers, hinted at in the verses, receive preliminary formulations in the suggestive exegesis of the rabbis.
What began as a paradigm of religion structured through law in the Bible, and served as a foundational text in the Qumran corpus for the sectarian legal-religious imaginary, becomes a platform for the rabbis to adumbrate a theological world beyond the strict contours of law. In subsequent chapters, this novel hermeneutic becomes the basis for crucial expansions. Thus, the theological tropes that rabbinic traditions identified within the Numbers pericope and began to unpack, have a rich and varied afterlife in the Medieval period.Footnote 121 By the early modern period referred to at the outset, Judaism receives robust articulations as a religion that move well beyond the pericope.Nevertheless, a striking echo of the pericope’s motifs can be discerned in an important passage written by Moses Mendelssohn, the figure who, according to Batnitzky, “invented” the (early modern) idea of Jewish religion.Footnote 122 Expounding on the interplay between law and religion in the Bible in his landmark work Jerusalem, Mendelssohn offers a characterization that recalls (or, more precisely anticipates) the synopsis of Moshe Greenberg (who adduces the pericope as “Exhibit A”) cited above:Footnote 123
… in this nation, civil matters acquired a sacred and religious aspect, and every civil service was at the same time a true service of God … the public taxes were an offering to God; and everything down to the least police measure was part of the divine service.Footnote 124
A proximate passage notably formulates the converse dynamic as well:
… Every sacrilege against the authority of God, as the lawgiver of the nation, was a crime against the Majesty, and therefore a crime of state. Whoever blasphemed God committed lese majesty …Footnote 125
In other words, law and religion are deeply intertwined in the Bible.
More significant than the overlapping characterization of Greenberg and Mendelssohn, however, is its contrasting implications for each thinker. Greenberg’s account, as elaborated upon above, suggests a convergence between these realms, as religion operates within a normative framework. But Mendelssohn marshals it to advance a more capacious conception of the religion of Judaism. By the early modern period the religious orientation is evidently too pervasive to be otherwise confined. On the contrary, the ceremonial laws, for Mendelssohn, are consonant with, and also constitutive of, religion writ large (as the term would be understood by his Protestant interlocutors).Footnote 126
Supplementing a universal category of rational faith, Judaism contains historical truths and ceremonial rules. These latter precepts,Footnote 127 which must be embraced voluntarily, are fulfilled with one’s body, as well as one’s heart, mind, and soul. They serve as a living script, rousing a practitioner, and inspiring his or her contemplation of metaphysical and moral ideals. Transitory in nature, these ceremonial laws foster an authentic religious experience, and evade the fetishism of idolatry. Alongside their praxis, their subjective and communal meaning is continually interpreted and revised. A more elastic form of law thus affords a more expansive religiosity.
For some other early modern thinkers following in Mendelssohn’s wake (e.g., Abraham Geiger and Hermann Cohen), the ceremonial norms are mostly relinquished, and faith, reason, and ethics flourish in their place.Footnote 128 Whether through a framework of norms, or without one, conceptions of Judaism as a religion have continued to evolve ever since. From a tradition dominated by laws in much of its formative strata, “Judaism” has thus gradually developed rich discourses of theology, which are grafted onto, situated alongside, or advanced in lieu of the normative order. Indeed, in certain modern iterations, Judaism does not just make room for theology, but is even stunningly recast as the quintessential religion.
At the beginning of the 1950s my PhD supervisor was a doctoral candidate at the Kharkov Law Institute, where he was preparing to defend his doctoral dissertation on Soviet law. His work “Soviet legislation” addressed purely legal issues like the nature of Soviet laws, the interlinks between law and legislation, and the hierarchy of legal acts in the Soviet Union. Just as his department recommended that his dissertation be defended before a special council responsible for conferring his degree, Joseph Stalin issued an article, “Marxism and the Problems of Linguistics.” Even though Stalin’s article had little to do with my supervisor’s dissertation, his department immediately ceased preparing for his defense and returned his dissertation so that he could consider the conclusions of Stalin’s opus. Their reactions were not reflections on the quality of his dissertation, or even the doubtless, outstanding scientific significance of Stalin’s works (even if he did write them himself). Rather, they believed no research could justifiably be complete without quotes from the Soviet chief’s most recent works, or from Marx, Engels, and Lenin for that matter – all of which were used in debates as final arguments, the truth that needed no elaboration or defense, in the same way that medieval theologians used to cite the Bible, Church Fathers, or Aristotle.
Around the same time, my supervisor’s own supervisor and the head of his department had a habit of restricting his lectures to only enrolled students. If he spotted an unfamiliar person, he would leave the classroom out of a reasonable fear of being misunderstood. In Soviet times he did not write a word, but his academic views lived on in the memories and academic works of his students. It was precisely the terror felt by those living under totalitarianism: fear that discussing or lecturing on certain topics, such as the Law of the Twelve Tables or types of legal rules, might put the speaker under suspicion of contradicting Marx or Lenin, even though these men never wrote on the same issues. This understanding reminds me of an older fear of crossing a thin and twisted line that separates theology from heresy.
One can easily detect religious language in Soviet legal texts, namely, in constitutional acts. The USSR’s Constitution of 1924 opens with Apocalyptic imagery: the world has been broken into two camps – a socialist kingdom of good where peace, freedom, and equality reign supreme, and a capitalist hell where inequality, slavery, pogroms, and chauvinism rule. Religious rhetoric runs through other Soviet constitutional texts, as well. In the 1919 Constitution of the Ukrainian Socialistic Soviet Republic, an individual’s duty to work is supported with an almost direct quote from St. Paul: “He who does not work, neither shall he eat.”
Soviet philosophy of law was grounded on Lenin’s interpretations of Marxism, ideas that had an almost sacramental character through the assumed infallibility of their authors whose correctness was predetermined in the absence of scientific or any other kind of criticism. Several key conceptions (for example, the messianic role of the state and politicization of law) were implied from Lenin’s version of Marxism and influenced Soviet law on both philosophical and practical levels, including the Soviet understanding of legality and human rights.
This chapter explores religious features of Soviet law and argues that the source of this religiosity was not internally legal, but was political and implied from Soviet totalitarianism,Footnote 1 which can be described as a form of political religion. This conception suggests that totalitarian regimes (re)produce a religious means of grounding and implementing their own power over society. Moreover, at the core of totalitarian political power, there always lies an overarching goal, in pursuit of which the state frees itself from any legal restrictions. Thus, the conception of political religion is a suitable intellectual tool for studying certain aspects of Soviet law because it unpacks the concepts and principles of Soviet Law more fully than traditional analytical approaches.
This does not mean that Soviet law or totalitarian law in general cannot be considered according to the usual dichotomy, “law – arbitrariness,” as was done by Gustav Radbruch,Footnote 2 H. L. A. Hart,Footnote 3 Harold Berman,Footnote 4 or Dennis Lloyd (with different conclusions).Footnote 5 But traditional approaches do not adequately illuminate the nature of Soviet law. G. W. Paton wrote that Soviet law was “a sword for the executive and not a shield for the private citizen,”Footnote 6 that is to say, that Soviet law was the arbitrariness of the state. Soviet law, however, could be a shield, at least for politically loyal individuals in civil, family, and labor relationships or even in some relations with public power, and could be a sword in any legal situations against political dissidents, persons, or social group suspected of disloyalty. A political-religion perspective helps to demonstrate and explore this ambiguity.
Finally, two reservations should be made with respect to the scope and focus of my research. First, applying the political-religion conception presupposes a broad meaning of religion, which cannot be reduced to historical religions and faith traditions. When I argue that some features or elements of the Soviet legal system were religious by their nature or some doctrines and ideas beyond Soviet law were religiously justified, I do not try to argue that religions as social institutions in any way presuppose or support totalitarian political systems per se. I only mean that totalitarian political regimes are inclined to sacralize their power and employ religious tools in order to sustain themselves. This usually has some influence on the legal systems of totalitarian countries. This chapter should not be considered as a Voltaire-like critique of religion.
Second, in this chapter I explore only state-made law and pay almost no attention to informal regulation that may sometimes, especially in private-law issues, replace formal legal rules.Footnote 7 While law is not limited to state-made law, I limit my commentary because political religion influenced mostly the Soviet formal legal system, including legislation, court practices and legal doctrines developed by legal scholars and taught in law schools. At the same time, comparative research of formal and informal normative regulation in the Soviet Union,Footnote 8 can add a lot to our understanding of how legal and public-power institutions function in totalitarian political regimes.
II The Soviet Political Regime As Political Religion
The history of politics can easily be written as the history of politics and religion. Many perennial political questions have been answered religiously. For example, questions including whether the state or kingdom differs from a band of robbers (even if the only actual difference has always been whether the robbers were roving or stationary), why the state must be obeyed, and why it has the right to use force, have found answers in the divine status of ancient monarchs, St. Paul’s pronouncements about all authorities being established by God,Footnote 9 the status of the monarch as head of the Church, the medieval doctrine of the divine right of the king and corresponding myths, symbols, and rituals, and so on. Religion includes political power in a metapolitical context of what Leo Strauss once called “imaginary perfection,”Footnote 10 and ties it to the transcendent forces and otherworldly aims animating human life, that is, the City of God, salvation, or heaven.
Religion and religiously sanctioned law thereby normativizes relations between man and the political order. If the monarch is one of the gods or the son of god or Heaven, or the government is of God, then the power of the government appears to be a part of the eternal divine order and should itself observe God’s commands rather than acting arbitrarily. The fear and powerlessness which man felt towards the sovereign reflect the sovereign’s corresponding fear and powerlessness towards the might of gods and the duty to rule according to divine prescriptions, where the ruler and ruled share a perspective of responsibility before God. Things on the ground, of course, were more complicated, appealing to sources of political legitimacy as well as to a monarch’s own perception of his divinely determined power – regarding the former, a certain political form would imply divinely legitimated rule, where the religious legitimation of government power became intertwined with elements of political representation (for example, Roman Republic), and regarding the latter, we would do well to consider the numerous denunciations of Old Testament prophets against unjust monarchs or corrupt judges.
The secularization of politics and law changes this pattern. Secularization significantly reduced religious dimension of the political discourse. Politics becomes exclusively or mostly an inner-worldly matter. Recalling a historical study by Christopher Hill, Jeffrey Stout points out that already in the middle of the seventeenth century, citations to scripture in the English Parliament provoked laughter, reflecting the decline of the Bible’s public discursive authority.Footnote 11 Likewise, the divine right of kings did not prevent the High Court of Justice established by Parliament from sending Charles I to the gallows.Despite increasing secularization, faith and a religious way of arguing for power, symbolism, and rituals did not completely disappear from politics. Emilio Gentile writes that in the modern period there occurs a transition from the sacralization of political power to the sacralization of the political system.Footnote 12 In other words, politics itself acquires the rhetoric of religion, distinct only in that the content, according to Eric Voegelin’s categories, no longer transcends the world but becomes immanent to it.Footnote 13 Belief, commitment, and practice shifted direction to the things of this world – homeland, humanity, class, race, and the relation between ruler and ruled, who are either charmed (Georg Simmel) or frightened (Eric Fromm) by the ruler. Gentile talks about two forms of this secular religion: civil religion and political religion. He writes:
Civil religion is the conceptual category that contains the forms of sacralization of a political system that guarantee a plurality of ideas, free competition in the exercise of power, and the ability of the governed to dismiss their governments through peaceful and constitutional methods. … Political religion is the sacralization of a political system founded on an unchallengeable monopoly of power, ideological monism, and the obligatory and unconditional subordination of the individual and the collectivity to its code of commandments.Footnote 14
The totalitarian state pretends to be more than a form of government – it sees itself as the ruler of history, the creator of a new society or socioeconomic formation, the source of world revolution, the protector of race or nation, the keeper of an identity that is under threat. This sacred mission justifies the government’s monopoly on political and economic power, its total control over society, and any arbitrariness because, as totalitarians often claim, these bring about the stated ultimate end. In this sense, any real totalitarian state is a mix of fear and prospective happiness, or “paradise on this side of the grave,”Footnote 15 where fear of an omnipotent and omniscient machine of unbounded power is compensated for by an officially sanctioned expectation for future happiness: communist class-less society or the Thousand Year Reich.
Here I do not separately discuss the question of whether political religions appear to copy or make a travesty of traditional religion.Footnote 16 It seems to me that the aims of totalitarianism, such as totalitarian monopolization of power and control over society and individuals, their behavior, and consciousness, pushes this political system toward a wide (and perhaps twisted) employment and reproduction of secularized religious patterns and concepts. For totalitarian regimes, religion appears to be a suitable method for achieving these aimsFootnote 17. Even still, certain islets of ideology-free political and legal institutions, like contracts in civil law, appear to be an exception. We can examine the Soviet political regime as a form of political religion, including its official communist ideology and supported cults, myths, symbols, practices, and public institutions, on which Lenin and his party of Bolsheviks monopolized and sustained their power.
The Leninist and Stalinist interpretation of Marxism constituted the basis of Soviet communism. Marx’s teaching about the inevitable proletariat revolution and the construction of a communist class-less and government-less society is a combination of a scientific knowledge and a prophecy of the last who shall become the first, of the City of God on Earth. This is worth dwelling on because such an interpretation of class struggle takes matters beyond the limits of politics and economics. The liberation of the proletariat along with the whole of humanity becomes a question of the battle of good and evil, of ridding injustice from this world,Footnote 18 and not simply a response to political obstructions and an unjust distribution of economic resources. Therefore, it should come as no surprise that Marxism, as Bjarne Melkevik writes,Footnote 19 quickly became the object of a cultish and almost religious devotion of those who, believing in the Communist Manifesto, waited and, by their actions, catalyzed the creation of a communist “association in which the free development of each is the condition of the free development of all.”Footnote 20
Lenin’s interpretation of Marxism intensified this religious component in three key ways by appropriating Marx’s teachings to his own political goals. First, Lenin rejected any interpretation of Marxism that offered to minimize class struggle and make use of the evolutionary path without revolution.
Second, citing Marx and Engels, Lenin established that the transition from capitalist society into communism requires one additional step. Revolution does not do away with government but instead replaces bourgeois government with a transitional, proletariat government, which will begin to dissolve or to “wither away” with the disappearance of class contradictions.Footnote 21 The dictatorship of the proletariat (specifically, Lenin and his party’s dictatorship)Footnote 22 is therefore the only path to building communism. Lenin underlined that the exploiters can be defeated in one stroke but cannot be destroyed in one stroke,Footnote 23 because after the revolution the proletariat dictatorship should preserve itself and be strong enough for battle with the bourgeoisie and its sympathizers. Stalin added concerns about growing class struggle during the transition to communism and the impossibility of dissolving the state while being surrounded by capitalist countries; these concerns demanded an even more powerful state that would be prepared for battle against enemies from within and from without.Footnote 24 As a result, even the officially sanctioned death of the state became a question of the distant future. After breaking through resistance from the class of exploiters, the USSR was proclaimed to be for all people and appeared as the necessary facilitator of society, even all of humanity in a new class-less world, where according to Lenin, each could “receive from society, without any control over the labor of the individual citizen, any quantity of truffles, automobiles, pianos, etc.”Footnote 25 This messianic role allowed the state to justify any actions in relation to the society and to each individual.
Third, like many religions have throughout their history,Footnote 26 Lenin’s version of Marxism refused to entertain any criticism. The texts of Marx, Engels, Lenin, and Stalin (during his rule) became official dogma, whereas all other versions of Marxism were declared to be perversions or slander. Lenin began a tradition of interpretation according to which verifying Marx and Engels’s conclusions appeared an absurd task. The trouble was that there were internal contradictions in Marx’s works, as is almost unavoidable whenever all of a thinker’s works, including even his or her letters, are accepted as a single whole.
Soviet ideologists overcame internal contradictions in Marxism-Leninism like the internal contradictions in the Bible. Like medieval scholastics, Lenin and his followers juggled quotations in order to resolve conflicts of interpretation and showed that the problem was not with the contradictions but with misunderstanding “correct” revolutionary Marxism – correctly understanding was a symbol of faith open only to Bolsheviks and no one else.Footnote 27 Lenin devoted his main theoretical work, “State and Revolution,” to “resuscitate the real teaching of Marx on the state” and rid it of “opportunistic distortion.”Footnote 28 The word “distortion” is revealing. This is the rhetoric of battling heresy, not of “scientific” discussion. As Joseph Schumpeter wrote about Marxism generally, for an orthodox Marxist, as for any orthodox believer, an opponent is not merely in error but in sin.Footnote 29
In this sense, the absence of any political rights in the Soviet system is completely logical. In liberal political systems the critics of the state occupy the same moral position as supporters of the state. But if politics becomes religion, then political rights (the freedom of association for critics of the state, a multi-party system, etc.) encroach on an exclusively true political order, just as religious liberty encroaches on the exclusive truth of a state religion. Critics of the state are then seen as guilty of the same sin as heretics or atheists. Carl Schmitt was completely frank in one of his works of the Nazi period: “Now [after the coming to power of the Nazis] there is no equality but rather an absence of discrimination between the enemy of the state and its friend, between a comrade of the people and a stranger.”Footnote 30
Contradictions between official ideology and reality were overcome by way of what Hannah Arendt called the totalitarian “contempt for factuality.”Footnote 31 All actions of the regime that contradicted its own ideology or officially stated aims were considered unreal, nonexistent. In this way, there were no workers obligated to labor in slavery-like conditions in Soviet plants and factories because Lenin’s workers were the “vanguard” of working people and masters of the universe,Footnote 32 who “will scarcely allow anyone to trifle them.”Footnote 33 Thus, there was no actual Supreme Council of the USSR – a caricature of Parliament without any actual influence, where deputies were always voting for drafts worked out by the bureaucracy beforehand – because Marx criticized bourgeois democracy for the arbitrariness of its executive power and the lack of parliamentary control over it,Footnote 34 and because Marx called the parliamentary regime the regime of unrest that lived by discussion and thrived in conflict.Footnote 35
The messianic role of the state in forming a new society of Soviet people and in moving toward communism was supplemented by the teaching that developed Marxism-Leninism in all spheres of social life, even the most unexpected. The religious nature of Soviet communism presumed and demanded a capacity to create a complete picture of the world in which all the primary questions of human life would find answers. “Marxism will be able to do everything,” assures a character in Andrei Platonov’s dystopian novel The Foundation Pit. This teaching could be applied everywhere from science to sex: Marxism-Leninism could go so far as to teach how, in fact, genetic mutation happens or that one could only enter into sexual relations with partners of the same social class.
The institutional dimension of Soviet political religion comprised not only the state but also the Party and mass state-funded associations of young people, artists, writers, and so on. Membership in these movements, just like belonging to a state religion in many nonsecular states, was not just a way of immersing the population in official ideology from the moment one first stepped foot outside the family into kindergarten or primary school; it was also a way of determining privileges or, what was more common, it was a condition of nondiscrimination.
As with traditional religions, Soviet political religion had its own mythology, its own cults and anti-cults, rituals, and “holy” places. These applications legitimized the political regime and intensified the population’s loyalty and controllability. Further, the mythology amplified the supposedly scientific foundation of the Soviet system and reinforced the emotional scaffolding required to support official activities; but above all, it instilled in people’s minds that picture of the world which was most useful for a totalitarian regime. All the while communism battled traditional religion, which it perceived as an ideological and political contestant for authority and power. We can deduce that traditional religion presented such a threat from Marx’s emotional determination of religion as “the opium of the people”Footnote 36 and the “mystification” from which one’s conscience needs to be freed,Footnote 37 or from Lenin’s comparison of believing in God to a necrophilia.Footnote 38
On an ideological level, as David Walsh writes, “the presence of a divine Creator jeopardized the whole project of human self-salvation through revolutionary action,”Footnote 39 while on a political level, churches and religious communities presented, as Hannah Arendt said, the natural “objective enemy”Footnote 40 meaning part of the class of exploiters or an element of the government machine. Soviet official atheism solves both of these problems. It allows the government, as Walter Lippmann put it, to appropriate for itself the functions and prerogatives of God.Footnote 41 Besides that, communist atheism serves to justify the act of rejecting one’s freedom of conscience in the interest of the Communist Party’s (or really, the state’s) war against religion, interpreted as a war for freeing believers from “incorrect” convictions that, as one Soviet scholar argued, stand in the way of their happiness.Footnote 42
The dogmas, teachings, and practices of the Soviet political regime impacted the normative systems of Soviet society. There never were a set of morals that expressed purely class struggle. Communist morality in the USSR was more accurately a mix of commitment to communist ends, patriotism, universally shared human values, and the rules of cohabitation. The same can be said of Soviet law. Although it was of course impacted by the teachings of Marxism-Leninism and bolstered by the nature of the Soviet state, Soviet law was not completely severed from its past and even shared a number of traits with Western law. In this sense, the USSR legal system was reminiscent of the legal system of a nonsecular country, where religious law could compete with local customs or secular laws and could even dominate over them without being able to completely supersede them.
III The Symbol of Faith in Soviet LawFootnote 43
The symbol of faith in Soviet law is a set of ideas or dogmas that exhibit the influence of Soviet political religion on Soviet law. These ideas concern the nature of Soviet law, its role in society and in the movement toward communism, how law interacts with politics and the State, and its relationship with bourgeois law.
Marxism-Leninism considers law to be a part of the superstructure above the economic base, that is, above the relationship of production and exchange. The first section of the Communist Manifesto begins with the claim that the history of all hitherto existing societies has been the history of class struggle.Footnote 44 Where the means of production generate a surplus for exchange, there exist classes and class struggle. The economically dominant class, which owns the means of production and appropriates the surpluses, strengthens its dominance over other classes by way of political and legal institutions. Law, therefore, entrenches formal inequality among people of different classes. In this sense, the bourgeois state and its law institutionalize the dominance of the bourgeoisie as the ruling class over the proletariat and similarly oppressed social groups.Footnote 45
The socialist revolution consists in the formerly oppressed proletariat, along with their collaborators, forcefully taking power into their own hands and installing a dictatorship of the proletariat that governs in the interests of working-class people. After crushing the resistance from the class of exploiters, particularly after establishing public ownership of the means of production, the state becomes an all-people’s government. Law in this state likewise appears to be for all people, meaning that it serves the interests of all people rather than of specific classes. This, as Lenin once said, is “bourgeois law without the bourgeoisie” or, in other words, law that strengthens formal equality, but does not entrench class oppression. Lenin wrote that as the first step of communism, the socialist state maintains formal equality in the distribution of products of consumption insofar as equal amounts of labor ensure equal wages (the principle “from each according to his ability to each according to his work”). Therefore, the bourgeois legal principle of formal equality is used as a means of destroying classes, and the socialist state’s legal system became “bourgeois law without [the class dominance of] the bourgeoisie.”Footnote 46 The contents of the law as well as politics, religion, or art are determined by the nature of economic relations and class struggle in a particular historical period. Rembrandt’s paintings or Dickens’s novels, medieval droit coutimier and the formal equality of bourgeois law, elections and human rights, God and marriage, all express the economic conditions of life in a given society and its class contradictions. When economic order changes, so too does the ideological form of that society’s understanding and expression.
What does this mean for law?
First, law is a victim of history. From this perspective, when we reach the communist end of history, law as an instrument of coercion will wither away. It follows that the destiny and fate of Soviet lawyers was to witness the withering of that to which they had dedicated their professional lives, and by their actions to draw nearer the death of law.
Second, if law is determined by economics, its independent influence on social development is very limited. The legal form is necessary for substantiating the new economic order. It serves as a tool for nationalizing the property of capitalists, for the pursuit of class enemies, and for strengthening the position of the Communist Party. Nevertheless, law on its own cannot change the existing economic order, changes in the economic structure of society must precede changes in legal structure.Moreover, if the most important existential question concerns changing the economic order, then for the sake of building a society without class contradictions, the state can use any element of the superstructure as an ideological weapon in the struggle of good (the socialist state on its way to communism) versus evil (the capitalist system). This struggle does not determine the content of any law, administrative act, judicial decision, or lecture at any law school, not to mention books or films, but it does mean that there was always the possibility their content could be so determined. If the state needed it, then law and the courts (as well as textbooks of Roman law, children’s cartoons, or even Shakespeare’s plays) could be mobilized in defense of the political system. Paul Ricoeur writes:
Once it is assumed that these [juridical, political, religious, and cultural] spheres have no autonomy, then the Stalinist state is possible. The argument is that since the economic basis is sound and since all the other spheres are merely reflexes, shadows, or echoes, then we are allowed to manipulate the latter spheres in order to improve the economic basis.Footnote 47
At least as applied to law, this state is as Stalinist as it is Leninist. Lenin proclaimed that the interests of the revolution are higher than the formal rights of a democratically elected, representative body.Footnote 48 In other words, if the revolution demands it, or, if Lenin believes that the revolution demands it, then legal procedures can be neglected. In his letter to Dmitry Kursky, Lenin directly insisted on fast, expedient, revolution-based show trials against political enemies of the Soviet government. He emphasized the role of Party influence on judges and members of the revolutionary tribunal for the achievement of this end.Footnote 49 In this demand for political violence against enemies, sanctified by court decisions, it is easy to see Stalin’s upcoming show trials against enemies of the people as the new role of legal form in installing a socialist world. From the perspective of political religion, the legal form is valuable insofar as it lines up with the avowed or actual goals of the Soviet political regime, above all ensuring loyalty to the government and its politics. For that reason, several times in his letter Lenin emphasized the role of his party in “improving” the work of judges and officials.Footnote 50 He meant that law should be primarily influenced by state aims, that legal principles such as the presumption of innocence or due process are less significant than political expediency. The aims and needs of political religion are higher than legal principles, and when it is expedient to do so, law serves as one of the methods of achieving a political goal.
Third, as part of the preliminary stage preceding the onset of communism, the epoch of socialism is characterized by its own socialist law, which is radically different from bourgeois law. Even dressed in clothes of human rights or democracy, bourgeois law always exhibits class coercion and inequality, while socialist law always exhibits exactly the opposite. Lenin wrote: “Take the fundamental laws of modern states, take their administration, take the right of assembly, freedom of the press, or ‘equality of all citizens before the law,’ and you will see at every step evidence of the hypocrisy of bourgeois democracy.”Footnote 51This framing allows Soviet legal science to look at bourgeois law in the same way that Vladimir Mayakovsky looked at the New York bourgeoisie in the poem “Broadway”:
From this perspective, in bourgeois law there is not, nor could there be, guarantees of “real” human rights or “real” justice; instead there are only legal norms, procedures, and institutions, through which capitalists ensure their political dominance and the bondage of exploited classes.
Support for this assertion of Soviet legal scholars was found in Arendt’s “contempt for factuality,” an alternative world of past, present, and future law, often quite distant from how things actually were. In 1938, when Stalin’s terror reached their peak, a famous Soviet scholar of criminal procedure still portrayed the Soviet judiciary as independent and obedient only to the law.Footnote 53 In the same year, Andrey Vyshinsky explained the need to establish individual fault in every concrete crime despite being aware of the practice of punishing family members of enemies of the people.Footnote 54 In a different work, Vyshinsky concluded that the principle distinction of Soviet constitutionalism is the actuality of constitutional rights and the actual ability to use them; in contrast he said that bourgeois constitutional law is an artful perversion of reality, proclaiming rights that cannot be realized.Footnote 55 In reality, as a rule, everything was exactly the opposite – Soviet constitutions declared the right of members of the Soviet federation to secession, but in fact, the legal mechanism of secession was never established.
IV Theology of Soviet Law
Here I explore how the theology of Soviet law developed its symbol of faith by way of four interrelated doctrinal problems: (1) the “death” of law; (2) the correlation of socialist and bourgeois law; (3) the links between law and politics; and (4) the economic nature of law (the base–superstructure problem). The term “theology” is, of course, relative. I use it to show that in the studies of Soviet lawyers there was no clear-cut distinction between philosophy of law and religious interpretations of Marxism-Leninism. Samuel I. Shuman compared Soviet philosophy with a “theological exegesis rather than anything likely to be identified as the professional product of people like Plato, Kant or Hume.”Footnote 56 The theology of Soviet law nevertheless also pursued quite practical aims of the totalitarian political regime: the centralization of power, maximum interference with all aspects of social life, control over society, and the loyalty of the population and its obedience.
The “death” of law is, perhaps, the simplest point in the symbol of faith. According to Marxism-Leninism, as law does not exist without the coercive power of the state, both must wither away together after the high phase of communism has come. But class struggle demands more state power to defend the achievements of the Russian Revolution rather than less power through withering away. Because “withering away” means gradual weakening of law rather than immediate disappearance, Soviet jurisprudence turned suddenly from expecting withering away as an actual future development of law to withering away as a process just beyond the horizon of events.Prominent Soviet legal scholar, Evgeny Pashukanis suggested that law would pass away after private property was liquidated and a planned economy was established. As Bjarne Melkevik pointed out, for Pashukanis, the withering away of law must follow the withering of market society, but not due to a voluntary political decision or any ideological discourse.Footnote 57 However, in later works, Pashukanis provided an important qualification. If he first spoke about the withering away and gradual dissolution of law during the transition to communism, then later, leaning on Marx’s and Lenin’s conception of bourgeois law without the bourgeoisie, Pashukanis wrote about Soviet law as “the legacy of a bourgeois epoch that was to outlive the bourgeoisie”: law would exist while there was a relation of equivalency between labor and wage,Footnote 58 and, as a consequence, material inequality of individuals. Similar thought that law would wither away only after full material equality within society was reached was articulated by Pyotr StuchkaFootnote 59 and Mikhail Reysner. The latter noted that a “formula that provides unequal treatment of unequal people will kill law.”Footnote 60 The discussion was summarized by Andrey Vyshinsky in a very illustrative way:
Law will wither away only when people will have gotten so accustomed to following the main rules of community life that they will follow them without any coercive force. Before that, however, total control, strong labor and community discipline, and total subordination of the whole work of the new society to a really democratic state is still needed.Footnote 61
That was the end of the discussion. After Vyshinsky, the withering away of law was never discussed seriously in Soviet legal jurisprudence. Predictably, the utopia in which absolutely everyone follows absolutely all of society’s rules, in which all are ready to work to the extreme in order to receive an equal number of Lenin’s “truffles, cars, and pianos,” failed to materialize, unlike the second part of Vyshinsky’s observation regarding total control and subordination.
The idea of “bourgeois law without the bourgeoisie” was also employed to compare socialist and bourgeois law. Any law expresses the will of the ruling class and is to be supported coercively by the state. Stuchka wrote that socialist law was transitional; it accompanied the transition from capitalism to communism.Footnote 62 It was the law of a class and it was coercive, but it was law of a special kind. Socialist law does not serve as a means by which the minority oppresses the majority. Rather, socialist law embodies the unified will of the proletariat and serves the interests of all working people. Though it was still the law of formal equality and material inequality, Vyshinsky argued that Soviet law did include some elements of material equality: the social ownership of the means of production, an equally available social right to education, healthcare, pensions, social support for large families, etc.Footnote 63 Vyshinsky emphasized that all these benefits were granted by “the Soviet power” and “the Soviet state.”Footnote 64 Hence, the state acted as manager and de facto owner of public wealth and distributor of social goods, which only strengthened the paternalistic relationship with society so favorable for a totalitarian regime.
Relations between law and politics, the third point under discussion, were an intrinsic part of Soviet discourse on the nature of law and its validity. During the 1920s and early 1930s, there were competing versions of the Marxist approach to law in Soviet jurisprudence, including Pashukanis’s “the commodity exchange theory of law,” where primary elements of law are legal relations of commodity exchange between autonomous and formally equal subjects;Footnote 65 Stuchka’s law as a system of social relations that expresses the will of the ruling class and are enforced by its organized power (that is, usually by the state);Footnote 66 Yakov Magaziner’s law as a system of obligatory rules that are established and protected by the state but created by society itself and shaped in concrete administrative or judicial decisions;Footnote 67 and Mikhail Reisner’s theory of class intuitive law, a combination of the class approach and Leon Petrażycki’s psychological theory.Footnote 68
These theories seem to be more sociological (or some combination of sociological approaches and legal positivism). The validity of law is connected not only with the establishment of laws by a certain legal authority, but also with its real action within society. Sociological theories of law conflict with the logic of a totalitarian system that is not ready to recognize and accept any permanent restrictions on its lawmaking power or right to influence and change society using legal means. The prospect of finding law in real administrative and court practices, but not in legislative acts, seems tempting, of course; public officials and judges could thereby manipulate laws for the will of the state or the party. But in giving too much discrete power to small cogs in the machine, it contradicts the totalitarian aim of concentrating and centralizing power. Instead of following the will of the highest authority, these channels would create their own legal regulation and rely on their legal conscience rather than on the laws they professionally apply.Moreover, pluralistic debate about the nature of law was hardly compatible with the totalitarian system. Disagreement and confrontation of ideas were discouraged; differences of opinion, philosophical schools, factions, or parties would be harmful for social cohesion and loyalty to the state. Isaiah Berlin argued that this was why after Stalin gathered strength, he stopped all ideological debates and announced the victory of this or that (randomly chosen) school.Footnote 69 Andrey Vyshinsky unified the variety of approaches to law in the late 1930s.Footnote 70 He defined law as follows:
Law is a system of rules of behavior expressing the will of the ruling class and it is established by the legislator, as well as by the customs and rules of community life sanctioned by the state, the application of which is guaranteed by the state coercively in order to protect, to strengthen, and to develop social relations and orders that are beneficial and favorable for the ruling class.Footnote 71
For Vyshinsky, legal rules always express the will of the ruling class and are always established or sanctioned by the state. Thus, the will of the ruling class cannot be articulated against the Soviet state – the first state in the world where the proletariat revolution has won and social justice has been done. Moreover, due to its messianic mission, the state understands this will better than the ruling class itself. For that reason the state is authorized to establish not only rules that express the actual will of the ruling class, but also anything that will be favorable for the proletariat and all working people in the future (“in order … to develop social relations”). Thus, Vyshinsky’s theory presupposes no institutions or procedures capable of, to borrow Radbruch’s terminology, “supra-statutory law” against “statutory lawlessness.” Some Soviet lawyers argued that because there was no antagonism between the state and individuals in Soviet society, there were also no disputes between the state and private persons and, consequently, that there was no need for judicial review of administrative acts (individual acts are meant here, but judicial review of normative acts seems to be even more absurd in this regard).Footnote 72
Such a combination of the legislative will of the state and the will of the ruling class that is exclusively expressed by the state, is the way to argue the core principle of the Soviet law: the so-called “socialist legality” that is strict observance of legal rules (norms of the law) by all persons and entities except the state itself, which, due to its political aims and with reference to the will of people and the benefits for the ruling class, is able to deviate from these rules, ignoring or arbitrarily changing them. The state acts here as an oracle of class will and the exclusive lawmaker – an almighty “legal God.” This God makes his “covenant”Footnote 73 with the chosen Soviet people, the only people that has jumped to a new socialist grade of social development. This God requires obedience to “commandments” in order to reach perfection or transition to communism. It is the communist aim, rather than any legal construction, that commands the mutual loyalty of the State and the people.Footnote 74 The state punishes those who deviate from commandments, both to those who violate legal rules and those who express political disloyalty.Footnote 75 In the covenant, the state itself is not limited by rules or principles, for it is guided by its messianic aim.
This does not mean that the state always exercised its power arbitrarily and the application of legal rules is always uncertain. Soviet law could protect individuals against the state when the state allowed it. For example, an employee dismissed unfairly could be reinstated after filing a lawsuit or making a claim to a competent state body or even appealing to the local chapter of the Communist Party. Yet an employee fired for a political joke or a student dismissed from university for involvement with the dissident movement had no chance of an effective remedy regardless of the formal reason for dismissal. At any moment the state could ignore any legal procedure, rule, or principle when it came to individuals or social or ethnic groups that qualified as “traitors,” “enemies of the people,” or “dissidents” because political aims weighed more heavily than any rules or principles. This is precisely when law becomes terror.
Vyshinsky’s approach prevailed until Stalin’s death and was later condemned and partly rejected by post-Stalin Soviet legal science. Subsequently, some Soviet philosophers and legal theorists continued their commitment to the base–superstructure dichotomy, to class theory, coerciveness, and normativity as core features of law, but they also tried to work out less statist conceptions of law, including a focus on judicial process. For example, they sought strict and unconditional observance of legal procedures by state bodies and public servants, and to their definitions of law they added legal relations, legal conscience, and subjective rights and responsibilities, along with legal rules.
In the late 1970s, the most prestigious Soviet law journal, “Soviet State and Law,” organized a series of debates on how law was to be understood. All scholars participating in the event cited Marx, Engels, Lenin, Leonid Brezhnev, and decrees of the latest Congress of the Communist Party. None were prevented from defending rather different concepts and characteristics of law: law as legislation, law as state will, law as something broader than positive law, distinctions between societal law and official law, etc. Although these debates were presented as returning to or revisiting a “correct” Marxism, it is hard to imagine that the participants were converted Marxists. Like the Bible in the English Parliament of the seventeenth century, in the late USSR legal ruminations on the withering away of law could only provoke a smile. Scholars instead sought out a compromise between their views on law and the symbol of faith in Soviet law that they could not ignore. For instance, Leningrad University’s Lev Yavich wrote that law not only subordinated individuals to the means of production but also was a way of enabling their creativity.Footnote 76 For Yavich, law was most certainly determined by society’s economic system and class relations, but it also guaranteed a certain amount of individual freedom, even in terms of feudal or bourgeois law. This methodological trick, as well as the relevant increase of the importance of law and legal regulation within the Soviet state, demonstrated the gradual ideological weakening of soviet political religion in the legal arena.
Olympiad Ioffe, one of the participants in the “Soviet State and Law” debates and a brilliant Soviet specialist in civil law and Roman law, was deprived of his professorship in the early 1980s for permitting his daughter to immigrate to Israel. After that Ioffe was compelled to immigrate to the United States where he found work at several American universities. His works from this time demonstrate an adequate assessment of Soviet jurisprudence that is free from repetition of Marxist-Leninist dogmas,Footnote 77 including those he relied upon in the debates. The same seems to be true for most of the other participants in that discussion. After the dissolution of the USSR in 1991, some of them became natural-law philosophers, others legal positivists and legal sociologists. Most ideas of Soviet law (withering away of law, class approach, “base–superstructure”) never again played an important role in their research.
V Influence within the Legal System
Now I show how the ideas that derived from Soviet law’s symbol of faith worked in practice. This is not easy to do within the parameters of a single section in this chapter. Nevertheless, to that end I will look at four phenomena in Soviet law – uniqueness, publicness, politicization, and socialist legality – to clarify how and to what extent each of these phenomena influenced the legal system of the Soviet Union.
Uniqueness. Soviet law was considered radically different from the law of bourgeois (capitalist) states. Historically, Soviet law differed from Russian Imperial Law, and Soviet Law was geographically removed from Western law. Western comparativists employed the term “socialist legal family”Footnote 78 to distinguish Soviet law and the legal systems of other socialist countries that emerged after World War II from civil law and common law.
Political uniqueness was necessary for criticizing Western law and legal values. Rechtsstaat was called “a mirage that came to replace religious ideology.”Footnote 79 The rule of law was stigmatized as a cult,Footnote 80 and human rights were considered to be rights for the rich. Meanwhile, Soviet legal science offered the doctrine of a “truly” lawful state, for in the Soviet conception of socialist democracy, even a peasant from a remote village could be elected to the highest legislative body and could formally work as a deputy, all judges were elected by representative bodies (formally elected as well), and human rights derived from the “social nature” of human beings,Footnote 81 that is, from their affiliation with and loyalty to a socialist political and economic order.
Yet the uniqueness of Soviet law, both in its historical and geographical dimensions, was relative. Although for Lenin everyone could be a judge,Footnote 82 the Soviet government promptly turned toward written, codified law created by professionals for application by professional servants and lawyers. In this sense, Soviet law had features similar to both the law of the late Russian EmpireFootnote 83 and the law of Continental European states. Private law contained many legal institutions resembling those found in capitalist legal systems (e.g., contract of sale, which, Stuchka argued, would never be socialist; damages; the mutual rights and responsibilities of spouses; etc.). Ioffe provided a number of examples of Roman law’s influence on Soviet law,Footnote 84 thereby establishing even more links between the socialist and civil-law families.
Some rules, procedures, and doctrines of Soviet law were unique due to the features of Soviet political religion. I explore some of them in the context of publicness and the politicization of Soviet law and socialist legality.
The publicness of Soviet law means extreme expansion of public-law regulation in the Soviet legal system, as well as in every totalitarian system. Totalitarian regimes tend to centralize power and to interfere greatly in the private space; limiting civil society and family life enables the regime to centralize and exert its power over society. Lenin wrote, “We recognize nothing private; for us everything in the economic field is public law.”Footnote 85 Soviet lawyers therefore dismissed the civil-law distinction between public and private law.
In constitutional and administrative law, publicness determines the characteristics of centralization, which in the Soviet case meant three things: the strict subordination of lower state and Communist Party bodies to higher ones; the fakeness of Soviet federalism; and the denial of any separation of powers; disproportionate state interference with family, labor, and civil-law relations. For example, all economic relations with the state involved related to administrative, but not civil, law. It is worth contrasting the concept of “personal” property, as applied to the means of consumption, with the almost completely banned “private” property as applied to the means of production – under this construction one could buy a car for his or her personal, noncommercial needs but could not buy a harvester to harvest crop for selling. In labor law, the state ultimately limited the terms of labor contracts that employers and employees were free to negotiate, including remuneration, schedule, specific requirements, and incentives, etc., because work itself was a duty, not an individual right. Those who were able to work but did not might be prosecuted. Publicness of law also meant that state interests took priority over private interests. Thus, for example, the theft of state property was punished more severely than the theft of private property.
Politicization, that is, the dominance of politics, over law, had a variety of expressions. First, both the law and the state officially defended communist ideology. Article 6 of the Soviet Constitution of 1977 described the teachings of Marxism-Leninism as the basis for social development and characterized the Communist Party as the “ruling and directing force of Soviet society.” One is tempted to think of the Party as a Marxist “church.” But rather than a separate institution, the Party was part of an enormous state machine, especially after Stalin’s “cleansing.” It had no interests of its own separate from those of the state. Article 6 is dedicated, then, not to the Party’s role as a political institution, but to the defense of Soviet communism by public power and legislation and to compelling popular loyalty to this ideology and its institutional embodiment, the Soviet state.
Second, politics and state interests may be excluded from ordinary legal regulation. Under Stalin, legislative provisions and legal procedures sanctified terror against political opponents, certain social and ethnic groups, and the whole of society. For this purpose, criminal codes and special decrees established an extremely wide and uncertain corpus delicti of political crimes, such as participation in anti-Soviet organizations. For this purpose, criminal codes and special decrees established an extremely wide and vague corpus delicti of political crimes, such as participation in anti-Soviet organizations, though none of that was enough, and some of Stalin’s potential or real opponents and “objective enemies” were simply murdered. After Stalin’s death, the state continued to persecute dissidents. Trials against politically disloyal persons were a light version of Stalin’s show trials. Still, though they did not presuppose the accused’s active self-incrimination, the judge, prosecutor, advocate, and accused all knew the outcome ahead of time even in these post-Stalin trials. Beyond politically motivated imprisonment, other legal tools of oppressing dissidents were exercised, including dismissal, internal and external exile, revocation of citizenship, and forced treatment in psychiatric medical institutions for nonexistent illnesses. The state selected punishments based on political reasons rather than legal provisions.
Politics was significant not only when dealing with political opponents of the state; politics could also be a reason for violating res judicata or giving ex post facto effect to criminal law in nonpolitical cases. In the early 1960s, a highly publicized trial began in Moscow against people accused of illegal commercial activity and trading currency (the infamous Rokotov-Faibishenko case). The convicted offenders were sentenced to the maximum imprisonment of eight years, but under pressure from the Soviet chief, Nikita Khrushchev, the Presidium of the USSR Supreme Council enacted two decrees that increased the maximum sentence to fifteen years and, later, to the death penalty. Afterwards, the court reviewed the case, applied new decrees ex post facto, and sentenced the defendants to death.
Socialist legality. Strictly speaking, Soviet law did not begin with the idea of obedience to state-made laws, but rather with a revolutionary legal conscience of state officials and lawyers. After the immediate cancellation of all legal acts of the Russian Empire, Pyotr Stuchka, who was a legal theorist, a People’s Commissar for Justice, and head of the Supreme Court of the USSR, advised judges to be guided by their class consciousness when hearing cases.Footnote 86 Following Stuchka’s advice, judges and officials should resolve individual cases according to the Party’s consideration of what is good or bad for the proletariat revolution and for Soviet power. In a more purified form, this would be Orwell’s world of total legal uncertainty, a world without any strict or predictable procedures or terms, as well as without any written laws.
As I wrote above, legal regulation based on class consciousness would appear to be attractive and convenient for a totalitarian system. A legal system of this kind, however, disseminates power among a great number of officials and judges who make law every day. (And these are different “laws,” so to speak, because the lawmakers’ legal consciousness could not be identical, therefore giving rise to what Herbert Hart called the “plurality of [legal] systems”.Footnote 87) Officials and judges all become authoritative lawmakers, which contradicts the totalitarian centralization of power. In response, the Soviet government issued a huge number of decrees, instructions, and orders strictly limiting the arbitrary power of its officials and bodies in order to regulate state actors but leave space for situations when the state may be interested in maintaining legal uncertainty. The regime’s aim was not to give officials unlimited discretion, but to allow them to ignore legal rules while prosecuting political opponents or using the forced labor of imprisoned persons so that, if or when it was needed, the state could punish those officials for arbitrariness.
The main difference between socialist legality and legality as an element of the Western rule of law doctrine is that, in the latter case, legality should be interpreted in the light of other principles (human rights, legal certainty, due process etc.) that ensure the quality of laws, secure their appropriate application, and subordinate the state to law. Socialist legality subordinates the individual to state laws and decrees, leaving the state itself to follow legal provisions at its discretion, according to whether or not the interests of the ruling class or the whole Soviet people, that is, the interests of the state, demand that it deviate from these provisions. Following laws became its own objective without any justification by stronger principles (human rights, for example). Under this guiding principle, it only makes sense that the USSR considered all legal acts performed during the Nazi occupation of its territory as void, even though it would have been more reasonable not to nullify all marriages or real estate contracts but to consider every case separately.
Socialist legality ultimately limits the number of cases where individuals are permitted to lawfully deviate from legal rules. In particular, Soviet criminal law prohibited self-defense if there was a chance of running away or calling the police for help. This might mean that if you were attacked by someone in a dark alley, you could not defend yourself if you were a professional runner or if there was a chance that a police officer was around the corner. In civil law, legislation always prevailed over contracts. Thus, socialist legality served as a tool of state control over both society and individuals and established total dependence on the state even in the private space.
Vyshinsky and I happened to be separated by one generation of jurists; we were only a handshake apart. I began this chapter with a story about my PhD supervisor, who as a graduate student participated in a conference where Vyshinsky was a keynote speaker and who wrote his dissertation at a time when Vyshinsky’s legal thought was settled dogma.
Today, the constitutions of all the Post-Soviet states are filled to the brim with provisions regarding the rule of law and the government’s accountability to individuals. In each of these constitutions we can find a solid catalogue of human rights and all of the usual principles that usually accompany a stable democracy – separation of powers, constitutional and judicial review, due process, and so on. Yet a number of very different political regimes operate on the basis of these (rhetorically similar) constitutions, ranging from the severe autocracies in Central Asia to the Baltic democracies in the European Union.
To be sure, this state of affairs arises from various economic, political, and social causes. What interests me is the levity with which post-Soviet societies approach their constitutions, treating their own, relatively recent, founding political and legal documents as if they were mere declarations or as if they were mandatory, though not especially practical, attributes of all independent states.
Precisely this attitude indicates that the primary element of the Soviet legal tradition was the politicization of law; law’s subordination to politics survives in Post-Soviet societies. If, after the collapse of the USSR, all viable political goals as well as support from Western countries called for the adoption of liberal constitutions, then why not do so? But if a liberal attitude with regard to morality, or the fundamental, or due process, does not answer our social needs or to our societal aims or traditions, then why not ignore them?
A proper farewell to Soviet law tradition will only come about when law acquires a value independent of politics, that is, when law is no longer subordinated to politics. This can be conceived as a movement away from a theology to a philosophy of law. I am not calling for a “legal enlightenment,” that is, the liberation of a legal system from irrational grounds. Like all values, legal values, especially human rights, always carry an emotional commitment. In contrast, law must no longer be regarded as just a means of carrying out political decisions and as the subject of political manipulation.
Only then can we expect a break with Soviet political religion, which allowed for the certain exercise of legal rules only to the extent that the state found them useful in carrying out its designated function of moving society ever closer to a brave new world.
I Introduction: “A Bargain About God and Nature”
This chapter suggests that the rise of the UN’s development and human rights regimes share many parallels with the development of American Christianity, especially after the Evangelical pivot away from the Social Gospel after World War II. In exploring the many intersections of post–World War II internationalism and Evangelicalism, it suggests that the rise of certain UN values should be considered at least partly an expression of law as religion. That is, some international law is sanctified as universal truth, or presented as a “savior,” while some political speeches can be considered secularized versions of the American Evangelical take on Jesus’s call to “go and make disciples of all nations.”
In broad strokes, the chapter explores the influence of a distinct form of American Evangelicalism, which took form during the century before the adoption of the Universal Declaration of Human Rights (UDHR) in 1948 but which overtook Mainline Protestantism in America as the dominant “political theology” after World War II.Footnote 1 At the same time as the UN human rights mission floundered during the Cold War,Footnote 2 Evangelicalism became a dominant force first in the ideological outlook of many Americans and then in the American political sphere.Footnote 3 The UN turned its focus to Bretton Woods progeny, adopting and promoting a new universalist mission: “development.” While this mission began as an inwardly focused European project, it grew, especially during the years following the Cold War, into an outwardly focused extra-Western mission with goals now described as “inextricably linked” to those of human rights.Footnote 4 In parallel, and especially after the Cold War, Evangelicals embraced a new globalism that saw greater engagement with international development as a means to maximize individual impact, both for the evangelizer and for the evangelized.Footnote 5
While “development” in law describes an economic process that is dependent upon the external condition of capitalism,Footnote 6 “development” as a concept has long been associated with “natural” processes, as inevitable as the passage of time.Footnote 7 While philosophers David Hume and Adam Ferguson contested the idea that “development” could ever be understood as “continuous growth” – they were both writing in some form on the inevitable decline of nationsFootnote 8 – it was their contemporary Adam Smith who carried the day. Smith’s descriptions of capital economics are well known: an inevitable force, an “invisible hand” guiding the “progress of opulence,” the “necessity” of which is imposed by the “natural … order of things.”Footnote 9 Indeed, the voices comprising the dominant philosophy of the West, and the founding texts of economics as a discipline, presented “development” not as a choice but as a necessity.Footnote 10 American Evangelicals have a similar understanding of the progression of history.Footnote 11
Like “development,” the Universal Declaration is infused with beliefs that human rights are “natural,” necessary, and just. Specifically, that document articulates rights as if their validity for anyone depends upon their validity for everyone. Many of these rights are presented as innate; all are presented as universal. Perhaps because of this, even some prominent lawyers assume the ratification of the UDHR had some form of universal consent at its genesis.Footnote 12 But this has never been the case. The UDHR very much reflects American, Christian, and Evangelical values. At the very least, it presupposes a natural law formulation that sanctifies the mere status of “humanity.”Footnote 13 Adjectives such as “inherent,” “inalienable,” and verbs such as “born” are used throughout the Declaration in alluding to the source of the rights it enshrines.Footnote 14 The UDHR also speaks of “the fundamental attributes of the individual” and the “essential rights of man,” and while the lawyers who crafted the final draft went to great lengths to avoid references to “God” as “Nature” in the text, there was one exception in the Preamble’s assertion that people are “by nature endowed with reason and conscience.”Footnote 15 The essential idea is that rights are derived from the virtue of being human, to be recognized rather than created by humans and human institutions. On this view, sovereignty is likewise rooted in the individual rather than the group.
But these conceptions of human rights are far from necessary. This was obvious at the outset in many ways. For example, not a single Communist nation voted to approve the language in the finalized draft, primarily based on objections that the draft improperly conceptualized the relationship of the individual to the State.Footnote 16 The draft assumed in many instances that individual rights were more important than group rights.Footnote 17 Had the six Marxist states entered a “no” vote, the draft would not have become enshrined as the document we read today,Footnote 18 but these states, along with South Africa (abstaining due to continued apartheid) and Saudi Arabia (abstaining due to objections about family rights) – took the abstention role as an act of diplomacy; one that would allow the draft to move forward without indicating the complicity of abstaining states.Footnote 19 This symbolically if not procedurally undermined the UDHR’s universalist claims at its very genesis: it suggested that the document was ideologically unsound or immature.Footnote 20
While some might dismiss the idea that Christianity infused the UDHR by pointing to the diversity of its drafters,Footnote 21 that dismissal would ignore the fact that all three ideological authors – including the predominant twoFootnote 22 – spent their entire adult lives seeped in American Christian ideology. One was an American Christian, one passionately embraced Evangelicalism, and the two non-Americans had spent most of their adult lives in the USA and had received their prolonged higher educations from American universities.Footnote 23 While Peng Chun Chang spent the vast majority of his formative years and adult life in the USA eventually receiving a PhD from Columbia, Charles Malik since boyhood attended evangelical schools founded by US missionaries in Lebanon, eventually attending the American University in Cairo and earning a PhD from Harvard. If Malik had his way, the UDHR would make direct reference to “God,” but he settled for an expression of the “God”-assumption in the idea of “inherent” rights – a hard-fought concession according to the record.Footnote 24 Later in life, in an essay honoring then-famous tele-evangelist Billy Graham published in the Journal of the Evangelical Theological Society, Malik declared that “the Bible is the source of every good thought and impulse I have,” and expressed an apocalyptic longing for Jesus to “return and judge the living and the dead.”Footnote 25 Back in 1948, Chang was able to curtail Malik’s fervor with quotes from Confucius as the two pinpointed “universal” truths for the UDHR.Footnote 26
In the place of “God and Nature,” the UDHR enshrines beliefs about the individual that carry elements of both “God and Nature.” The human is “God”-like because human rights elevate humanity above all else; the planet and all other species are functional instruments over which the human has domain. The human is also “Nature” because the UDHR’s rights come not from creation or cognition but from mere existence. The element of “nature” is especially important to the present role of the UN’s development mission because, as already noted, the concept of development itself is often assumed to be a necessary, inevitable occurrence.Footnote 27
The year following the adoption of the UDHR saw President Truman’s now infamous Point Four 1949 Inaugural Speech,Footnote 28 which encouraged a new globalist development mission. His speech came at the same time as Cold War tensions or ideological prematurity froze out human rights – the UN’s original raison d’être.Footnote 29 Point Four’s mission is exemplary of American Exceptionalism. Here, I suggest that it parallels Evangelicalism in ways that are immediately striking. First, it recalls the desperate straits – the horror of hunger and want – in which more than half the world’s population live (the “unsaved” other). Second, it presents the good news (gospel) that, “for the first time in history,” (a singularity, a Messianic notion) an answer is at hand that will bring happiness and make it possible for lives to be transformed. Third, this will not come to pass without agency: energies must be mobilized to produce more, to invest, to work, to expand trade. Finally, in the end, if the chance is seized and people agree to the efforts required, an era of happiness, peace, and prosperity will dawn from which everyone stands to benefit. This cluster of ideas can also be viewed as an expression of quasi-religious faith in American approaches to social and economic governance –as a call for International Law as Evangelism.Footnote 30
The speech can be more critically viewed as replacing the English colonial language of the “white man’s burden” to “civilize the savages” with a triumphalist “responsibility” to bring “democracy” and “rule of law” to “underdeveloped nations.”Footnote 31 At the same time as the UN’s primary mission morphed from human rights to development, the organization turned increasingly to NGOs that were already engaged in the international proliferation of projects like education, poverty-reduction, and what would today be known as “capacity building.”Footnote 32 Initially, the biggest of these were missionary organizations, responding to Jesus’s command – “go and make disciples of all nations” – long before the UN was hatched, and boasting global networks that the UN hoped to mobilize.Footnote 33 While many of the largest of this first wave had Catholic and Protestant roots, by the time the “third wave” of Christianity began to emerge in “developing” nations in the 1980s,Footnote 34 most of these organizations had largely secularized their international activities, sometimes as a precondition for UN funding.Footnote 35 However, in executing UN development initiatives – a task that has fallen exponentially to NGOs since the conclusion of the Cold WarFootnote 36 – these NGOs gained increasing ability to set preconditions for international assistance both through global prominence and through “consultant” status.Footnote 37
In painting a picture of international human rights and development law as Evangelism, this Chapter proceeds in broad strokes. This is somewhat of a necessity for the chapter’s aim; volumes would be needed to explore each of the movements it references in full. The chapter also makes no claims about the specific mindsets of individuals working within the organizations or agencies mentioned; it is rather analyzing the social movements that produced and reshaped human rights and development during the immediate post–World War II moment to the present day. Thus, in broad strokes, the following sections will map the departure of dominant Christian ideology from mainline “Social Gospel” Protestantism to an increasingly political form of Evangelicalism after World War II (Section II); the Evangelical globalism that emerged from Jesus’s call to “make disciples of all nations” and its parallels in the Bretton Woods and outgrowths of Truman’s Point Four vision of “development” (Section III); interactions between Evangelical organizations and parallels to Evangelical thought as the UN shifted its focus from human rights to development (Section IV); and some concluding remarks on how international lawyers might – given the existence of a good dose of Abrahamic (if not Christian) ideological infusion in UN institutions – (re)imagine how international law might respect multiple ideologies at the same time (Section V).
II From “Social Gospel” to Evangelicalism
Postmillennialism and Premillennialism describe differing doctrinal beliefs regarding the present stage of human history as it relates to the apocalyptic prophecies of the Book of Revelation in the Protestant Bible. Postmillennialists interpret Revelation Chapter 20 as a promise that Jesus Christ’s “second coming” will occur after a period of 1,000 years during which Christian ethics will globally thrive.Footnote 38 Postmillennialists hold that, prior to this Christian Millennium, the church is equipped with the teachings and gospel of Jesus and charged with a Great Commission to “go and make disciples of all nations … teaching them to obey everything I have commanded you.”Footnote 39 Once the Church has executed this work, the doctrine holds, the Christian Millennium will commence, and only after the conclusion of that Millennium will Jesus’s physical return to Earth occur.Footnote 40 Between the American Revolution and the American Civil War (1776–1861), Postmillennialism was by far the prevalent doctrine amongst American Protestants. In the decades following the Civil War, Postmillennialists began to take less seriously the supernatural elements of their religious belief. Influential theologians, such as William Newton Clarke, found that the Bible was not “infallible and supernatural” but rather a “natural and normal” ethical guide to inform our behavior here on earth.Footnote 41 The Kingdom of Heaven was not otherworldly, but a description of ideals for this world; it was not external but internal.Footnote 42 On this view, Christians had a duty to ensure that social and economic systems responded to the call in Jesus’s Matthew 6:10 prayer: “Thy Kingdom come. Thy will be done, on earth as it is in heaven.”Footnote 43 This was the Social Gospel: a belief that humans had a duty to create heaven-like conditions on earth coupled with a belief that the end of the world was nowhere in sight. Thinking along these lines dominated “mainline” Protestantism in America from roughly the 1880s until the 1930s.
By contrast, Premillennialists believe that the physical coming of Jesus will occur prior to the 1000-year Christian Millennium, and that followers of Jesus will ascend into heaven at that time by means of Rapture.Footnote 44 The dominant American Pre-Millennialist school is known as “Dispensationalism.” Dispensationalists hold that, after the Rapture, there is a seven-year period of “tribulation” after which Jesus will return again with his saints (this is based on an equation derived from Revelation 20 and 21). After this return, the Christian Millennium will begin.Footnote 45 The distinctive feature in the theology of Dispensationalism is the belief that history is divided into several sections, each exhibiting the same characteristics: God reveals himself to humanity, humanity is asked to obey, humanity fails to obey, God judges humanity and introduces a new period of probation. (Adam’s fall, Noah’s Ark, Abraham’s calling, Moses’s exodus, Christ’s birth, the current age of the church.Footnote 46) Dispensationalists believe the earth is currently nearing the end of the 1000-year Rapture-inducing period of sin. Scholars in many fields have offered accounts of how this mindset affects the individual’s relationship to the earth, the individual’s relationship to society, and the individual’s relationship to other individuals.Footnote 47 Some have noted that Premillennialism absolves its adherents of a strong sense of responsibility for social amelioration. Others have noted that, if the earth is “fallen” and social evils are the result of the devil’s influence, rather than focus on bringing about social conditions that allow individuals to realize God’s kingdom on earth, the more essential project is to prepare oneself and others for heaven. This is where Evangelicalism finds its primary orientation.Footnote 48
The causes of Evangelicalism’s rise to prominence since World War II are obviously manifold; too vast to explore in great detail here. But some economic perspectives, particularly from Barro and McCleary,Footnote 49 note that it is not the particular sect or interpretation that boosts social appeal so much as the sincerity of belief in faith and religion. The economist’s view suggests that greater diversity in the supply of religions combined with religion’s exposure to America’s “sink or swim” capital markets led to a Christianity of increased “quality” to seize market share (if quality is measured through a religion’s ability to secure capital from its followers).Footnote 50 Where quality is determined by devotion, although it is difficult to accurately measure “sincerity,” American Evangelicals appear unique in the type of religious sincerity they hold as compared to other predominantly Protestant cultures.Footnote 51 In other fields, some suggest that, as the First World War claimed millions of lives from 1914–19 and as the Great Depression set in after 1929, the Premillennial message of impending doom became more palatable to a population living on the fringes of death and economic ruin.Footnote 52 Still others suggest that a sincere belief in the merits of the Free Market rendered Premillennial theology’s “fallen world” doctrines a plausible explanation for the failures of laissez faire Capitalism.Footnote 53 At least one common thread that runs throughout the explanations for Evangelicalism’s rise is the observation that a cultural majority in America sought some form of “light in the darkness”: an interpretation of scripture that could not only inspire sincerity on a personal level, but also explain the inconsistency of war and economic depression with the belief that Godliness and Capitalism brought peace and prosperity.Footnote 54
Whatever spurred its rise, this “light in the darkness” ideal kept Evangelicals largely apolitical until after World War II. For the first half of the 1900s, Evangelicals rejected the political process as a component of “modernity,” bent on reinterpreting God’s word to cater to the lax moral standards of a corrupted society.Footnote 55 One influential scholar describes early Evangelicals as a “loose, diverse, and changing federation of cobelligerents united by their fierce opposition to modernist attempts to bring Christianity into line with modern thought.”Footnote 56 Evangelicalism certainly had intellectual foundations, but it was also reactionary, suspicious of institutions as corruptors of the faith.Footnote 57 In the mid-1920s until the 1950s, the drive to keep Christianity “pure” created a situation in which Evangelicals were “determinedly sectarian and isolated from the American cultural mainstream.”Footnote 58 The exclusion from politics was a voluntary, even doctrinal, component of the belief.
In many ways, Harold Ockenga led the charge of Evangelicalism’s new political engagement. Long before Richard Nixon spoke of the “silent majority” in the early 1970s, Harold Ockenga spoke of the “unvoiced multitudes.”Footnote 59 He viewed FDR’s inaction on sexual licentiousness and Eleanor’s support of interracial marriage as a sign that it was time to “clean house at Washington” (a slogan not unlike Trump’s “drain the swamp”).Footnote 60 This thread was picked up by Jerry Falwell, Billy Graham, and eventually Ronald Reagan, all three of whom spoke of the “moral majority.”Footnote 61 Falwell and Graham both eventually held official positions as “spiritual advisors” to presidents – Graham was advisor to Nixon, Bush, Reagan, and Clinton. Ockenga, Falwell, Graham, and Fuller formed the National Association of Evangelicals (NAE) in 1942, and over the next fifteen years, this organization crafted “a culturally savvy, professional Evangelical engagement with public life that helped Americans make sense of the post-War apocalyptic reminders of imminent violence, horrific persecution, inhumanity, and destruction.”Footnote 62 According to the NAE, the “American Century” had arrived, and it was the “wholehearted” responsibility of America as the “most powerful nation in the world” to “exert upon the world the full impact of our influence.”Footnote 63 The NAE held influence over Evangelical doctrine that is difficult to overstate, and it unrelentingly linked country with faith. The NAE’s “American Century” paralleled the rise of modern Evangelicalism as a political force.
III “Make Disciples of All Nations”
When the UDHR was drafted, the Social Gospel still held dominant sway on American culture, especially amongst the intellectual elite who participated in its creation.Footnote 64 But in the decades following the UDHR’s ratification, Evangelicalism rose to the fore both ideologically and politically. The rise of Evangelicalism, along with its Dispensationalist understanding of history as progressing in distinct phases toward a definite end, correlated with a shift in the UN’s focus from an organization predominantly engaged in the propagation of rights to an organization predominantly engaged in various forms of “development”: educational, democratic, and of course, economic.Footnote 65 This is not to say that Evangelicals caused this shift. But even while Evangelicalism cannot be said to have directly created it, from the perspective of powerful Evangelicals such as World Vision’s Robert Peirce and Frank Phillips, the rise of the global development project a gave secular form of financial backing to Jesus’s call to Evangelical missionaries in Matthew 28:19–20: “Therefore go and make disciples of all nations, baptizing them … and teaching them to obey everything I have commanded you.”
There are many parallels to note between Evangelical globalism – the specific belief that one has a “responsibility” to bring one’s way of life to those that are living in other ways – and the UN’s human rights and development missions. Evangelicalism’s characterizations of “unreached people groups” are often those development institutions characterize as “least developed.” And like the Social Gospel, human rights as an ideal spread not because it overtly serves the interests of a few powerful states but primarily because it presents itself as advancing the interests of the powerless. Just as missionaries have done since the days of Jesus, human rights imbedded itself into the soil of cultures and worldviews independent of the West, promising that it could sustain ordinary peoples’ struggles against unjust States and oppressive social practices – that anyone could be “saved.”Footnote 66 Perhaps the UDHR was appealing in these contexts not as a representation of universal norms, not as an expression of some intrinsic good of humanity, but as “salvation.” The salvationist promise was deliverance from humanity’s potential for depravity.
This is not to say that the UDHR was drafted in an Evangelical or even Abrahamic vacuum. Many delegates participated on its committee. But after initial debates, only three delegates actually participated in the crafting of the UDHR’s initial provisions: Roosevelt, Malik, and Chang. Although some place Roosevelt at the helm due to her position as Chair, both Roosevelt’s and Malik’s diaries and letters, along with the resulting draft of the UDHR and other official records, indicate that Malik, a fervent Evangelical, dominated the discussion. The discussion itself took place within a broader emerging framework. While the UDHR has become important to our present, it was born amongst a crowd of appeals to international juridical means to prevent the repetition of wartime atrocities, including the UN Charter of 1945;Footnote 67 the Genocide Convention of 1948;Footnote 68 the revision of the Geneva Conventions of 1949;Footnote 69 and finally the International Convention on Asylum of 1951.Footnote 70 Nevertheless, the Abrahamic influence on the precise shape of these international mechanisms is well documented and virtually undeniable.Footnote 71
In this light, an Evangelical layperson would likely understand the UDHR’s text or the Point Four speech not with reference to international relations, law, or global economics, but with reference to concepts familiar in daily religious life. Point Four mirrors the call of the Gospel: America must “go” and “mak[e] the benefits of our scientific advances available” for all “underdeveloped areas” teaching the “inadequate[ly]” nourished “victims of disease” with “primitive and stagnant” economies how to “relieve the suffering” through America’s Messianic “knowledge and skill.”Footnote 72 And in order to ensure that disciples are made “of all nations,” ratifying international human rights covenants has become a condition of entry for new states joining the UN.
IV From Human Rights to “Development”
The worldwide spread of human rights norms is sometimes seen as a moral consequence of economic globalization.Footnote 73 The US State Department’s annual report for 1999 on human rights practice around the world describes human rights and democracy – along with “money and the Internet” – as one of the three universal languages of globalization.Footnote 74 While this may too easily imply that human rights are a style of moral individualism that have elective affinity with the economic individualism of the global market,Footnote 75 it can certainly be said that the narratives advanced by the US State Department view human rights and development as advancing hand in hand.
This was not always so. Although there was certainly enthusiasm amongst newly decolonialized States for especially the “self-determination” provisions in the UDHR at its outset, and although some of those States sought to mobilize the UDHR in international relations, more critical voices have convincingly shown that the UDHR lacked a shared “universalist” understanding to begin with,Footnote 76 and therefore lay largely dormant until it was revitalized as part of a broader economic agenda,Footnote 77 or a mobilizing utopic vision, at the end of the Cold War.Footnote 78 The United Nations and the Bretton Woods Institutions were hatched after roughly a decade in which the New Deal and the “Social Gospel” saturated religious and political life in the United States.Footnote 79 The work of UK economist John Maynard Keynes, whose most famous book advocated for central spending in excess of tax revenue during times of economic stagnation,Footnote 80 was also influential in shaping how the IMF and World Bank conceptualized the central goal of Bretton Woods – international economic cooperation.Footnote 81 All of these ideas (New Deal, Social Gospel, Keynesianism) elevated a community rather than individualized approach to economic policy, which is a far cry from the individual primacy attributed to the UDHR today. Thus, in the original split of development and human rights, one might conceptualize the Bretton Woods institutions as expressing the Social Gospel’s communalism and human rights as expressing its emphasis on the intrinsic worth of individual human beings.
As already noted, the “development” institutions were initially “inwardly” focused toward the States that created them. Once the institutions were established, and once Europe was rebuilt and increasingly interdependent, the development mission turned “outward” toward Africa, Asia, and South America, beginning in the mid-1970s under Nixon and accelerating ever since. The UN Charter demanded that its values be accorded to all nations “without distinction” without much consideration paid to the idea that distinction might at times be a good thing.Footnote 82 Thus (again in very broad strokes), as a large influx of new states (former colonies) opted into GATT 1948 and other trade agreements in the late 1950s and 1960s,Footnote 83 and as increased production capacities and urbanization in “developed states” coincided with an increase in global demand for commodities, the (in)ability of former colonies to produce those primary goods ushered in the Kennedy Round in 1963.Footnote 84 It was the Kennedy Round that legally incorporated for the first time Truman’s “development” as a goal of the emerging international economic legal order, and it later migrated back to primary UN organs through the ECOSOC and the UNDP.Footnote 85
While US resistance to outcome-driven human rights tribunals was present from the start,Footnote 86 it conversely embraced “security and predictability”-driven international economic tribunals. Economic tribunals – ICSID arbitration and the WTO’s DSU – rose along with the shift in development’s luminary away from Keynesian influence. The reasons for the massive overhauls that broke through in the 1980s are manifold, but the tides seem to have turned partially as a result of the Oil Shock of 1973Footnote 87 – itself fueled by Richard Nixon’s departure from the “gold standard” guaranteed at Bretton Woods – and partially as a result of neoliberal economic policies in the 1980s that took the place of Keynes, bolstered by the Evangelical resistance to all things Communist during the same period.Footnote 88 Indeed, the Reagan and Thatcher administrations in the 1980s advocated outright anti-Keynesian approaches to economics in a “conscious effort” to reposition and recalibrate “ideas and expectations about the appropriate role of government, the importance of private enterprise, and the virtues of markets.”Footnote 89 Those administrations successfully mobilized anti-communist fervor against the idea of government economic planning in general.
In the decades prior to Reagan, at least two pivotal factors drove the UN to entrench “development” in international law. First, the Cold War constituted the “Third World” as an ideological battleground of the major powers,Footnote 90 so that new States or national liberation movements were able to benefit from the support of influential protectors (sometimes switching from one to another).Footnote 91 Second, Communist-Capitalist antagonism blocked the UN decision-making system, because the effective veto of the permanent members of the Security Council could be used to prevent any action under Chapter VII of the Charter “with respect to threats to the peace, breaches of the peace, and acts of aggression.”Footnote 92 The organization was thus forced to recalibrate its mission to areas of greater international consensus, which included a (then vague) promise of “development.”Footnote 93 By the time Ronald Reagan stood at the Brandenburg Gate in West Berlin and famously demanded that “Mr. Gorbachev tear down [the Berlin] wall!,”Footnote 94 “development” – through the UN and the international legal instruments that took cues from its institutions – was fully incorporated as a legal instrument in the emerging field of international economic law.Footnote 95 But while “development” became entrenched in international law during the fiercest decades of the Cold War,Footnote 96 it was not until after the collapse of the Berlin Wall that the neoliberal philosophy emerged as the global preference for ordering both the domestic and the international economy.Footnote 97 Neoliberalism’s proponents believed in the market above all to determine an efficient allocation of resources;Footnote 98 foundational neoliberal assumptions like those in Ricardian “comparative advantage” became the assumed logic guiding new approaches to international trade and investment law in the 1990s.Footnote 99 Neoliberalism stressed privatization of public enterprises,Footnote 100 liberalization of flows of investment,Footnote 101 and global governance of trade and investment.Footnote 102 Obviously, these were not new ideas that suddenly emerged after 1989, but they did become bound together as a sort of “package deal” in what John Williamson famously coined the “Washington Consensus” – ideas as old as “motherhood and apple pie,” but tied together and remarketed as a surefire toolkit for “economic development.”Footnote 103 This set of policies was embraced by the Washington-based international economic institutions: the World Bank, the International Monetary Fund, and the (now Geneva-based) World Trade Organization.Footnote 104 Today it represents a convergence of ideas, debatably synonymous with George Soros’s concept of “market fundamentalism”Footnote 105 that emanates not only from Washington, but from the entire developed world.
By the 1990s the Washington Consensus was considered widely as the basis of US economic success. The national interest required government agencies to take such a stance: The USA’s economy prospered as a result of multinational corporations being able to produce and market goods abroad while sourcing raw materials from abroad for use at home.Footnote 106 Predictably, other States that benefitted, that is, the most economically powerful States, rallied around the neoliberal globalist approach. Thus, the economic provisions that began at the Kennedy Round in 1963 and traveled through the UNCTAD in 1964,Footnote 107 the UNDP in 1965,Footnote 108 the UNSC’s so-called Second Development Decade Resolution in 1970,Footnote 109 before becoming hierarchized in the Enabling Clause of 1979,Footnote 110 became entrenched through the Marrakesh Agreement and the establishment of the WTO in 1995.Footnote 111 Alongside these developments, “New International Economic Order” (NIEO) efforts that began at the Asia-Africa Conference in 1955 and served the “Third World” through a series of UN Resolutions mostly in the 1970s found themselves dead in the water when economically developed States failed to get on board with an alternate convergence of ideas – what one might call the “Bandung Consensus” – that is, economic sovereignty, corporate regulation under international law, and permanent sovereignty over natural resources, amongst other proposals. In sum, in the 1990s, it became settled that international economic law’s job was to increase the size of the pie, not to redistribute it.Increasing the size of the pie, however, meant more international resources should be spent on infrastructural, educational, and institutional development in developing States. While trade and investment legal regimes ensure that private interests are protected against States and that States are protected against discriminatory trade practices amongst themselves, the UN and Bretton Woods Institutions could not leave development entirely to the private sector. In formal development initiatives, the role of NGOs has expanded significantly since the United Nations Development Programme (UNDP) was established in 1965, and almost exponentially since the conclusion of the Cold War. Scholars writing on UN Initiates in the Global South in 2004 had already noted that the “UN’s Economic and Social Council [ECOSOC] now grants consultative status on its work to 2,234 NGOs from around the world.”Footnote 112 Citing a 1999 paper on the “Politics of Development” and an ECOSOC report from 2003,Footnote 113 one scholar compares this number to the mere forty-one NGOs that were similarly involved in the 1940s:
Even the World Bank, often primarily focused on large-scale development and infrastructure projects, recognizes NGOs as vital to its work. In 1998, 50 percent of the projects it approved incorporated NGO participation, a marked increase from 1973, when only 6 percent of Bank projects involved NGOs. The growth in number, scope and profile of African NGOs over the last thirty years mirrors these general trends among Southern NGOs.Footnote 114
In part because of the purported “weakness” of postcolonial governments, powerful human rights and rule of law NGOs have become recognized and institutionalized as part of the UN’s post–World War II development mission. Their members tend to speak from a place of authority on issues that affect indigent communities, and some have been able to influence national and international spheres of public policy by expanding into new geographic sites and engaging in unprecedented partnerships.Footnote 115 In tandem, during the immediate post–Cold War period between 1991 and 2001, the government-sponsored development assistance flowing from individual Western states fell by an estimated 25 percent,Footnote 116 which further increased global demand for UN-funded NGO assistance.
The most prominent non-faith-based NGOs in today’s transnational landscape – such as Amnesty International and Human Rights Watch – fight for human rights as an ideological contest for the establishment of what James Ferguson has argued grants membership and access to “Western” institutional power: the power of information, the power of capital, the power of mobility.Footnote 117 Increased acquisition of such powers depends on the acceptance of certain development and human rights agendas. While AI and HRW do not receive state funding to do so, they are largely operated by individuals who held human rights-related positions in US Government or in UN Agencies; the boards of directors of both organizations are populated overwhelmingly from US and European firms and philanthropic organizations. Religious NGOs, by contrast, increasingly receive direct funding from the USA.Footnote 118
Where does Evangelicalism fit into this picture? We have seen that the UDHR and development missions carry ideological parallels with the development of American Evangelical thought. We have also noted that Evangelicalism has played an ever-increasing role in American politics since World War II. Here, I want to suggest that an intertwining of these parallel ideologies emerged with the UN’s increasing reliance on NGOs at the turn of the twenty-first century. The United States placed increasing pressure on the UN to adopt Evangelical-supported policies predominantly associated with reproductive health. In 2001, George W. Bush spearheaded domestic legislation aimed at increasing Evangelical involvement in global development projects,Footnote 119 and in 2002, the Bush administration withheld hundreds of millions of dollars in funding from the UN Fund for Population Activities, the WHO, and NGOs with reproductive programs in developing countries.Footnote 120 The Trump administration did the same thing in 2017 and 2019.Footnote 121 Meanwhile, conservative evangelical NGOs boosted their presence at UN policy forums. As Jennifer Butler observed in 2000, only the most conservative Christian groups are represented at the UN,Footnote 122 sometimes joining forces with Islamic conservatives and politically conservative think tanks such as the Heritage Foundation on areas of common interest such as “halt[ing] the expansion of sexual and political rights for gays, women, and children.”Footnote 123 Since the late 1990s, international conservative organizations have increasingly mobilized in support of “pro-family” or “anti-LGBT” values across faith lines.Footnote 124 While many of these organizations emerged from Western Catholic and Protestant states, the reactionary approach of Evangelicalism has found allies in many non-Christian states. One fascinating outcome of this phenomenon is the ability of the Evangelical movement to claim universality when it comes to the principle of a right but particularity when it comes to the definition. Specifically, where the UDHR declares a universal right to marriage in Article 16, Evangelicals insist that the “men and women” to whom this right belongs be defined as heterosexual units, not as individual men and women with the freedom to marry other individuals, whether men or women. The ability of conservative Evangelicals to exercise this type of political influence through domestic and international institutions has inspired conservative groups from other denominations to lobby the UN as well.Footnote 125
The backdrop for the influence of American Evangelical organizations through UN institutions had been set long before the turn of the twenty-first century. In the immediate post–World War II era, international Evangelical NGOs were the organizations best equipped to internationalize the shifting mission of the UN – they had the skills and the infrastructure to mobilize Western resources to achieve social goals abroad.Footnote 126 This is because Christian missionaries “did development first” along its non-investment-based dimensions such as education, medical aid, and technology transfer. By the time Truman produced his secularized call to spread American values to all nations in his Point Four speech, evangelical organizations like The Salvation Army and The American Red Cross had already existed for the better part of a century, and already boasted an impressive global spread.Footnote 127 As the Social Gospel that nourished those organizations gave way to Evangelicalism during the Cold War years, new global organizations like YWAM, Bethany, World Vision, and Samaritan’s Purse also rose to prominence.Footnote 128 This new guard of global missionary organizations differed from their Social Gospel ancestors in that they placed individual experience at the fore: not only a conversionary agenda with respect to the evangelized but also a transformative experience with respect to the evangelizer.Footnote 129 Many of these organizations took advantage of Reagan, Clinton, and Bush-era incentives to increase government involvement with Evangelical organizations abroad.Footnote 130
World Vision and Samaritan’s Purse in particular took advantage of government “development” funding to advance global initiatives through longstanding state cooperation when other Evangelical NGOs were wary of government funding as a potential infringement on religious autonomy. Both organizations – World Vision and Samaritan’s Purse – were founded by Evangelical minister Bob Pierce (who believed Christianity was the cure for Communism),Footnote 131 both focus on “international development,” and both receive substantial “development” and “humanitarian aid” contracts from the USAID and from the UN.Footnote 132 Along with a growing number of Evangelical groups, World Vision has consultative status with UNESCO and partnerships with UNICEF, UNHCR, ILO, WHO, and other Evangelical groups around the world. With a stronger missionary focus, Samaritan’s Purse specializes in emergency relief and infrastructural projects related to water, sanitation, nutrition, medical care, and public health.Footnote 133 It receives USAID funding and works closely with UN development initiatives around the globe.Footnote 134 It has come under fire for intermingling US government initiatives with religion, most publicly for requiring USAID recipients to sit through prayer meetings prior to receiving aid,Footnote 135 and its President Franklin Graham (cofounder and son of famed Evangelist Billy Graham) has openly described non-Evangelical religions as inherently “evil.”Footnote 136
These are two examples of many. But a systematic analysis of every Evangelical organization engaged in the UN’s development project is beyond the scope of this Chapter, and not necessary to demonstrate the central point: the concept of “development” in international law reflects Evangelical ideology, and the latter has sought to shape the former’s contours as it migrated from the UDHR to ECOSOC, the UNDP, the World Bank, and the multitude of NGOs now engaged in the project of international development. I do not present this as “good” or “bad.” Indeed, in many ways it is unsurprising that international human rights and development efforts turned to Evangelical organizations in expanding development projects during and after the Cold War. As political scientist Robert Woodberry has expertly shown, “conversionary protestants” were responsible for creating many of the social preconditions that led to the world’s most successful democracies (high literacy rates, mass education, voluntary organizations, and newspapers).Footnote 137 Perhaps it is precisely because these preconditions facilitated democracy that they became cherished cultural goals in the American psyche, and while a multitude of complexity has gone into the shaping of the present international legal status quo, one can rationally speculate that, in part, the UN secularized these cherished Western cultural goals at its founding and in many subsequent instruments, retrospectively rationalizing them through the language of modernity, and then began to institutionalize them in part through “development.”
But while it took the better part of two decades to mobilize the international resources and institutions that would – in this comparison – “minister” to the “underdeveloped,” the structure of Point Four parallels Evangelicalism in ways that are immediately striking. First, it recalls the desperate straits – the horror of hunger and want – in which more than half the world’s population live (the “unsaved” other). Second, it presents the good news (gospel) that, “for the first time in history” (a Messianic notion), an answer is at hand that will bring happiness and make it possible for lives to be transformed. Third, this will not come to pass without agency: energies must be mobilized to produce more, to invest, to work, to expand trade. Finally, in the end, if the chance is seized and people agree to the efforts required, an era of happiness, peace, and prosperity will dawn from which everyone stands to benefit.The fact that Truman’s speech parallels a secularized version of the “truth” as proclaimed by Evangelicalism may have contributed to American “faith” in Truman’s “development.” But the underlying belief fueling this “faith” was shared not only by the Christian world but, insofar as a Messianic message is conjured, by everyone who belonged to a salvationist religion.Footnote 138 In the years since 1949, rhetorical techniques have been used again and again in declarations affirming the necessity of “development” as the only solution to the problems of humanity.Footnote 139 And in much the same way questioning religious belief was frowned upon within the Church, questioning “development” as such is frowned upon by international lawyers, economists, and human rights activists alike.Footnote 140 “Unsaved” people groups as characterized by Evangelical missionaries parallel the “underdeveloped” nations as categorized by the UN. The World Bank’s largest concentration of development projects exist in areas that correlate with Luis Bush’s 10/40 window – an often used Evangelical visual tool to point to the area of the earth most in need of “saving.”Footnote 141 This aligns to the ideological legacy of the UDHR in ways too close to seem entirely coincidental. As Charles Malik – one of the two ideological fathers of the UDHR – wrote in a 1980 contribution to the Journal of the Evangelical Theological Society:
Jesus Christ is my Lord and God and Savior and Song day and night. I can live without food, without drink, without sleep, without air – but I cannot live without Jesus. Without him I would have perished long ago. I live in and on the Bible for long hours every day. The Bible is the source of every good thought and impulse I have. In the Bible God himself, the Creator of everything from nothing, speaks to me and to the world directly – about himself, about ourselves and about his will for the course of events and for consummation of history. And believe me: Not a day passes without my crying from the bottom of my heart, “Come, Lord Jesus!” I know he is coming with glory to judge the living and the dead, but in my impatience I sometimes cannot wait and I find myself in my infirmity crying with David, “How long, Lord?” And I know his kingdom shall have no end.Footnote 142
Many of the tenets of Malik’s Evangelicalism – from the individualistic focus, to the emotional witness, to the apocalyptic yearning – are also identifiable in the UDHR. Through the extension granted by Point Four and existing international religious networks, the UN’s development project echoes Evangelicalism’s call to spread the neoliberal gospel to all nations. In other words, it can be considered a form of evangelism.Footnote 143
The UN human rights institutions and the Bretton Woods institutions mirror to some degree religious beliefs that are deeply seeded in the Evangelical ethos. This is International Law as Evangelism. Today, UN and USAID development funding, empowered by Christianity-infused human rights texts, enable Evangelical missionary organizations to transcend state and international government in the spread of conservative goals: the World Congress of Families, which promotes anti-LGBT laws internationally on the basis of UDHR Article 16;Footnote 144 the Alliance Defending Freedom, which draws its funding from American corporations such as the former Blackwater Security Group and represents Christian clients in international courts;Footnote 145 World Vision, which receives USAID funding and regularly bids on UN development contracts, but has the authority to impose conditions on communities that receive benefits of those contracts;Footnote 146 and many others. Obviously, USAID and the UN support a great many organizations and projects whose goals are not aligned with Evangelicals, but it does not fund organizations from other religious sects under the umbrella of “development.” Thus, in addition to providing a social context characterized by a universalizing impulse, Evangelical organizations have also been strikingly active in reshaping UN and US development spending and decision-making.
While religious influence on domestic legal systems is well-documented and relatively uncontroversial in many instances, the dominant influence of any ideology infusing the construction and interpretation of international law should be resisted. This is not to say that ideology is not continuously and inevitably present in how we understand what is “good” or even “right” – of course it is. But perhaps if international lawyers start with a recognition that international law is infused with ideology, we can move beyond claims that present any particularized expression of the “good” or “right” as universal. From there, perhaps we can imagine how international law might express and respect multiple ideologies at the same time.