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THE LAW OF GOD The Philosophical History of an Idea By RÉMI BRAGUE The University of Chicago Press Copyright © 2007 The University of Chicago
All right reserved. ISBN: 978-0-226-07078-0 Chapter One Prehistory
There is nothing self-evident about "divine law." The expression establishes a connection between two notions, thus supposing that those two notions already exist. Its appearance in history requires a double evolution in how power is conceived: social power-the power of society over itself-must present itself in the form of laws; divinity, for its part, must have appeared as the locus of a power, and of a power susceptible of exerting a normative function.
The Idea of Law
The idea of "law" is not clearly perceptible in ancient societies. Our word "law" derives from the Latin lex, which expresses a Roman notion. When we use it to render the Greek term nomos or the Hebrew hoqq (and for even greater reason, the term torah), we make an arbitrary choice. It is out of the question blithely to apply our use of the term "law" to stages in social and intellectual evolution that have preceded our own and that at times occurred elsewhere than in Europe. Quite to the contrary, we will need to review the entire series of those stages during the course of this investigation. But first let me offer a rapid sketch of the genesis of the idea of law.
The idea of law expresses only one portion of the normative domain, which is much vaster than the law. To be sure, we know of no society without rules. Any society exerts a degree of pressure on its members. It suggests to them a certain type of response to the fundamental questions of human life, as men and women, overshadowed by the divine and immersed in the natural, carry on permanent negotiations concerning their relations with one another and with their surroundings. Those rules do not always have to be spelled out objectively. Take the rules of language: the individual does not perceive them as something external, which means that the constraints that assure their respect are never felt as an external pressure. Where more ritualized behaviors are concerned-courtesy, for example-social pressure suffices to insure compliance. In the worst cases, ridicule functions as a call to order.
It may happen that the norm is expressed, becoming conscious. This process simply formulates what had been implicit until then. Formulation does not necessarily imply a constraining authority. Its authority may be limited to that of long-standing acceptance, and it may remain oral, indeed without an assignable author. This is the "voice of the people," the source of proverbs and of the implicit value judgments with which language is saturated. At that level, counsel and commandment are still indivisible.
A norm that has been made explicit can be the object of an obligation. In that case, we can begin to speak of law. In order for there to be a law, there must be not only explicit statement but also imposition. This is what is expressed by the Latin ferre, still present in French in the verb légi-férer, like the setzen included in the German Gesetz. The idea is even redoubled in the word Gesetzgebung, or legislation. That laws are the source, and the only source, of law as a system, and that every law derives from a positive act of legislation rather than being the crystallization of a habitual social practice, seem to us axiomatic. This is not to be taken for granted, however. Similarly, choosing to call "law" only prescriptions accompanied by a statement of the punishment involved (in contrast to what then appears as lex imperfecta) occurred relatively late in history, and it is a presupposition that I shall take care to avoid.
The early civilizations were well acquainted with decisions that were issued by some authority, hence had "force of law." These can be separated into two groups: decisions with juridical value and sentences laid down in particular cases, on the one hand, and, on the other, general rules determining sentences to be applied in all cases. The idea of an objective and stable rule according to which such decisions would be made was at first quite unclear, however. Concrete judgments, handed down in particular circumstances, require explicit formulation, for their only existence is within and by means of that formulation. In contrast, principles that have been infringed upon do not have to be explicitly defined and can remain tranquilly implicit. The law appears as such only in situations in which harm has been done by a transgression and may require punishment. In ancient China one of the terms for the law was "punishments" (hsing).
The law takes a decisive step forward when it is set down in writing. The redaction of laws permits their conservation independently of their memorization by a guild of specialists; it gives the laws an objective and public status; and it facilitates comparison among different systems of laws and invites investigation of their coherence. The invention of the state and the invention of writing are closely connected, and-by definition-it is with writing that history begins. Authority becomes independent of the people, issuing rules that, expressed and formulated as such, are imposed on the people as coming from an external entity.
Later stages concern my theme less directly. Among them, however, there is one that needs to be touched on, which is that of codification. With this step, laws are not only written down but also assembled and organized into one corpus, at times given material form as a book or an inscription. Beyond this stage of assembling laws, and called into being by it, there is systemization, or the placement of the laws within a system that aims at exhaustiveness and coherence. When this occurs, an individual law takes on its full meaning only within an entire set of legal dispositions.
Power and Divinity
The notion of "divine," although not distinct, is decisively present from the start in the civilizations that interest me here. Belief that some sort of beings, or at least a higher region of being, exists above humankind is present everywhere. The connection between power and divinity, in contrast, is less automatic. The God of certain of the Greek philosophers, Aristotle's unmoved Prime Mover or Epicurus' gods far off in space, exercise no power, properly speaking: they may be models or objects of desire, but not efficient causes. The fact remains, however, that such views pertained among a very small elite who were reacting against widespread popular beliefs, and that for the better part of the populations the connection between power and the gods was more the rule than the exception. The Greeks were accustomed to calling their gods "those who are more powerful [than we are]" (hoi kreittones). Moreover, divinity was at first attributed to natural sites of power: above and around us, the stars and sources of water; among us, the fertility of plants or the sexuality of animals. Here the divine power is mute. It weighs on humankind or animates it from the inside, but it does not address humans.
A further step, which is, again, by no means self-evident, was to attribute to the divine the particular modality of power that affects humans as such-that is, insofar as the logos present in man makes him capable of comprehending an order and obeying it. That modality is the political. That something that defines humans as human can derive from the divine is a paradox. The link between the divine and the political involves so many difficult conflicts of jurisdiction that one might think it exceptional. That said, it is a fact that the connections between political power and divinity are both ancient and common.
Divinity is often credited to the holder of concrete political power-for simplicity's sake, the king. This relationship is no more necessary that those we have already seen, of which it is a particular case. But as before, it is widespread. In Egyptian, the word for "king" (n[y]-sw.t) is accompanied by the same determinative as the word for the gods. On occasion, the king is invested with a purely human role. When he has a relationship to the divine, it can take several forms, depending upon how the divine is represented in a given society. He can be viewed as the image of the cosmos, the spouse of the supreme goddess, or the son of a god. In the last case, he may have been engendered miraculously by that god or adopted by him. This is why the king in the Near East is represented as the elect of one or more gods, perhaps by adoption. In Psalm 110, for example, the god of Israel says to the king, "Before the daystar, like the dew, I have begotten you." Finally, the king's reign may be ushered in with a special ceremony of investiture in which he crosses the frontier between the profane and the sacred. One such act in ancient Israel was unction with oil by a prophet, an act that left an inherited trace in the anointing of kings in the Western tradition.
The gods also assist the king throughout his life. As a sacred personage, he is in contact with the divine and participates in the ambiguity of all things holy. Certain prerogatives (such as inviolability) derive from this contact, as do certain special powers, such as the power to heal.
The relationship with the divine, finally, is not only a source of power: it also determines a function. The elements are connected, because the familiarity that derives from the divine origin of power facilitates access to the sphere of the divine. Thus it often happens that the king is also a priest. Even in Athens, which was reputed to be desacralized, the archon, called the "king," still played this priestly role.
Law and Divinity
Within the various dimensions of the political, however, legislative activity was not necessarily a part of the connection with the divine. A relationship between the juridical in general and the divine is not a basic given. That relationship seems to be totally absent, for example, in Chinese civilization. Ancient China had an extremely elaborate system of laws, but "in China no one at any time has ever hinted that any kind of written law-even the best written law-could have had a divine origin." shall leave China aside, however, and concentrate on the civilizations to which Western Europe is the heir, all of which established a connection between law and divinity.
In those civilizations there is a discernable triangular structure connecting the divine, the political power (the king), and the law. Those three constituent elements can be structurally related in three ways. The divine can affect the king directly and the law only indirectly, or it can affect the law directly and the king only indirectly. In the first case, the relation of the king to the law will be legislative: the king, divinely chosen or inspired, makes the laws. In the second case, that relation is one of execution: the king applies laws that are intrinsically divine and have no need of him to exist. The third possibility is that of a direct association between the political power and the law that leaves the divine completely outside the entire sphere of the juridical and the political. That last structural arrangement, which appeared at a relatively late date, bears some resemblance to our own situation. The other two, in contrast, were the two alternatives available to the ancient world.
The Law of the Divine King: Egypt
Egypt represents what is probably the clearest example of the first arrangement. It was quite possibly in Egypt that something resembling a state appeared for the first time in history. State power as an abstract entity ceased to coincide with the persons who gave that power material form. With the XIIth dynasty (1994-1781 BCE) a distinction between the wealth of the state and the personal fortune of the king first appears.
In Egypt, terms such as hp or wj can be translated as "law." They designate "a universally valid rule, usually decreed by the king (or by a god) and concerning singular and concrete states of fact," and they originally specified a punishment. The law is a collection of individual cases, to the point that the plural hpw is attested before the singular hp, which figures as an abstract term only very late and in demotic texts.
The law was the word of the pharaoh: "Thus says the law of Pharaoh (hr.f m p3 hp n pr-'3)." The literal meaning of the word "pharaoh" (pr-'3), a term that has become familiar to us through the Bible and the Qur'an, is the "big house," or the royal palace. It becomes the title of the sovereign beginning in the XVIIIth dynasty, hence relatively late in the course of Egyptian history. The term does not designate the king in general, however, as Egyptian has other words for that, but rather the sovereign who is reigning at a given moment. If the laws are presented as the pharaoh's words, he must have had to ratify his predecessors' decrees.
Did ancient Egypt write down its laws? That depends on what is meant by "write." The determinative of hp is a roll of papyrus, but this is also true of all terms that designate abstractions. Some scholars have identified as written laws bands represented in a fresco depicting a trial on the wall of the tomb of Rekh-mi-Re in Thebes, but this interpretation has been disputed. In any event, we have no monumental inscription with a juridical content. Ancient Egypt had two modes of writing, paralleling the two styles of architecture, in stone and in mud brick. The first writing style corresponds to a desire for a permanent record; the second reflects immediate needs. If the Egyptians redacted laws, it is interesting that they did so exclusively on perishable materials. Their laws may have been written, but they were never inscribed.
In Egypt there seems not to have been any attempt to systematize the law into a code organized according to principles from which rules could be derived. This probably reflects a more general aspect of the structure of Egyptian thought, which prefers parataxis and the juxtaposition of elements to syntax, which organizes such elements according to a determinate point of view.
Egypt opted for the second solution regarding the law: juridical decisions come from men and are not dictated by the gods. It may be that the king, who is a divine being, issues a decree, but that does not mean that the law itself is divine. Thus the king is the source of law because he is a god, the "perfect god" (ntr nfr) living on earth. The idea that a king might stray from the law and merit punishment as a consequence seems not to appear before the "Demotic Chronicle" in the third century BCE. That did not prevent the king from presenting himself as obedient to the gods, who give him formal instructions rather than counsel.
Thus men are not delivered over to arbitrary choice; they are subordinate to something other. Nonetheless, this is not to say that they regulate their actions according to principles external to themselves; rather, they are inspired from within by a divine wisdom, the ma'at. This central concept of Egyptian thought can be translated as "justice" as well as "truth." The law thus depends on a instance higher than itself, which could, if desired, be characterized as divine.
The law, so defined, is simply an overall framework, within which the divine is not responsible for details: "The ma'at is the 'generating principle' of legislation, but it is never a codified law. What comes from God is only the general directive, not the details of content. The ma'at is a 'canon'-in the original, Greek, sense of the word-that orients all legislation in the fashion of a generative and regulating principle, but it is never the explicit and total content of codified juridical dispositions."
With the idea of ma'at Egypt came close to the notion of natural law. The "Protests of the Eloquent Peasant" include a formula that lends credence to that supposition. The plainti? asks the judge to render justice, appealing to the lord of justice-truth (ma'at), in this case the god Thoth. He adds an obscure phrase (ntj wn ma'at nt ma'at.f), for which various translations have been proposed, but all of which assert, in varying degree, that the justice of that god is justice itself. Whatever the case may be, if ma'at is the superior instance that measures the justice of the laws, that means that it is not itself a law.
The Law of the Divine King: Mesopotamia
Although ancient Mesopotamia differs from Egypt in that it has transmitted law texts to us, it too has left no code. Even what has long been called "The Code of Hammurabi" is not a code at all. We possess texts of judgments, contemporary and of a later date, that make no mention of that supposed "Code." Hence it must be something more like an anthology of exemplary juridical decisions.
(Continues...)
Excerpted from THE LAW OF GOD by RÉMI BRAGUE Copyright © 2007 by The University of Chicago. Excerpted by permission.
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