And that’s what Stanley Fish proposes. He wants to go back to Hobbes. In a word: Yikes! The Leviathan (Whale)-like civil authority is precisely why our founders said: “We hold these truths to be self-evident…” and appealed to “the Laws of Nature and of Nature’s God” and to the “the consent of the governed.”
This last phrase is almost certainly grounded in medieval constitutional theory (parallel to the conciliar theory that flourished in the high and late medieval periods). However indebted most of them may have been to the Enlightenment the founders did a good did of borrowing from the Christian tradition to establish their case against George III but they also “secularized” their appropriation. As Darryl Hart has argued in A Secular Faith, the idea of the “secular” is not inherently evil or wicked. I don’t recall if Hart says it but I will: The adjective secular is derived from the Latin noun saeculum. It doesn’t mean “anti-theistic” or “atheistic” or “evil,” or “wicked” or “devilish” as it has come to connote for so many American fundamentalists. The word “secular,” understood properly, simply means, “non-ecclesiastical.” If ecclesiastical = sacred, the “secular” realm simply describes that common life that all we image-bearers live together. It seems to me that Abraham Kuyper wrote about this concept somewhere.
The ideas of a transcendent natural law of divine origin and of authority that flows from God, through the governed, and thence to the magistrate (both of which are foundational to the American experiment), of course, antedate the Reformation, but they became especially potent in the 16th century as Lutherans and the Reformed writers began to articulate a theory of natural law (the natural revelation of the substance of the Decalogue) and of resistance to tyrants. In the early 1570s, Theodore Beza would write Concerning the Right of Magistrates to be followed by the anonymously written, Vindication Against Tyrants among other seminal resistance-theory texts. These two texts did not rely only on natural law. They also appealed to the history of redemption and conveniently blurred the line between national Israel and the 16th-century state. Our theology, however, tells us that we cannot so appeal to the theocracy as they did. Their own theology told them that also: See WCF ch. 19. A few hundred years after Christendom, it’s a little easier to see the distinction between the canonical theocracy and post-canonical civil orders.
The most enduring part of the argument by resistance theorists was their appeal to divinely-revealed, transcendent norms to which the magistrate and the governed are bound. They understood that the civil order is not a covenant of grace but a covenant of works. This is a distinction that has been lost on both the religious right and left who, in their monocovenantal politics, seem to be bent on making the civil order a covenant of grace and thence to achieve their utopia of Christian-Democratic Socialism or a “Christian-Republican America.”
A pox on both the religious right and the religious left. Neither one understands the nature of civil society as covenant of works. We do not need to appeal to “Christian America” to make our case. The founding documents are sufficient evidence. It was not long ago that Martin Luther King invoked our founding documents in order to call Americans to practice what they professed in the Declaration. Recently a correspondent quoted part of the famous 1963 Letter from the Birmingham Jail to the effect that King was a transformationalist. Doubtless, on some level he was. He certainly confused the two kingdoms by making the visible church an agent of social change. Nevertheless, he was also an advocate of natural law. In that same letter he wrote:
You express a great deal of anxiety over our willingness to break laws….The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has moral responsibility to disobey unjust laws. I would agree with St. Augustine that “an unjust law is not law at all.”
Now, what is the difference between the two? …An unjust law is a code that is out harmony with the moral law. To put it in terms of St. Thomas Aquinas: an unjust law is a human law that is not rooted in eternal law and natural law.
It’s true that King did use transformationalist language, but it’s not entirely clear from the context that he was (despite his practice) intending to say that the visible, institutional church is the agent of transformation. In fact, he was decrying the visible, institutional church for being an agent of the the repressive status quo. He seems to use “church” in the letter, and in the passage quoted by my correspondent, to refer to the members of the church as individuals. Whatever the case, the point here is to note that it wasn’t that long ago that someone was able to make credibly a natural law argument, grounded in the decalogue, in order to make a persuasive case in the late modern period. His appeal was persuasive because the natural law is a truly common (notice I did not say neutral) truth because it is universally known because it is revealed by God and embedded in the fabric of creation.
Johannes Althusius (†1638) also appealed to these creational norms and patterns in his Politica (1603). Long before Abraham Kuyper, he theorized about spheres of association and distinctions between those spheres and the family as the most basic unit of association and he did so at least partly on the basis of natural/creational law.
Althusius was no “secularist” (in the modern sense). He taught at Herbon, the academy founded by Caspar Olevianus (d. 1587) and was an orthodox Reformed writer on political and social issues. His theories were influential in the Dutch revolt against the Spanish and beyond. They were influential on at least some of the American founding fathers. Indeed, as I recall the abridged English translation of the Politica one can find almost the exact verbiage of the 10th amendment in it.
He was the father of Federal political theory (i.e. the doctrine of graduated assemblies that derive their authority from the smaller assemblies). There is a fair bit of reasonable literature arguing that there was at least some connection between Althusius’ seminal federal political theory and Reformed federal theology. The connections may not be as clear as some seem to think (as if federal theology necessarily leads to federal politics) but the connection is interesting. I’m not suggesting that Althusius made no appeal to the history of redemption. That would be a foolish claim since the appeal is embedded in the full title of the work! The heart of his argument, however, was in his appeal to creation and his observation about the nature of human society. This part of the argument, coming as it did before the Thirty-Years War (1618-1648), was a good foundation from which to build a new, post-theocratic model of civil association grounded in the nature of human society as constituted by creation. His Politca is an interesting resource for us as we consider how to respond to the pendulum swing back to a Hobbsian Leviathan-State.
[This post first appeared on the HB in 2009]