Does God Bind or Unleash the King?
[Sovereignty: God, State, and Self. By Jean Bethke Elshtain. Basic Books, 2008. Xvii + 334 pages.]
Several years ago, I wrote a diatribe against Jean Elshtain's Just War Against Terror. She was not altogether pleased by this and sent in a letter of protest, which evoked yet more venom from me. Readers anxious for a continuation of this battle must look elsewhere. Elshtain has written an excellent and illuminating book.
Carl Schmitt famously argued that the basic ideas of modern politics are secularized theological concepts, and Elshtain to a large extent agrees. In particular, she thinks, a change during the later Middle Ages in the notion of God's omnipotence had immense significance for the state.
For Augustine and Thomas Aquinas, God acted in the world in strict accord with law. Human beings, by reason, could discern this law:
Thomas retained the inner connection between God's reason, justice, and love, and the manner in which God wills. God's omnipotence remains but he is bound in ways accessible to human reason and through the workings of grace. God's will is just, insisted Aquinas. It follows that God can do nothing contrary to his nature and to what he has ordained. (p. 22)
In like fashion, political sovereigns could not do whatever they wished but were bound by natural law. "St. Thomas Aquinas is the direct heir of the Romano-Gelasian system in and through which law binds earthly authorities and powers, and authority is stripped from kings turned tyrants" (p. 15; "Gelasian" refers to the two-swords doctrine of Pope Gelasius I).
Several medieval thinkers challenged this view of omnipotence. Duns Scotus and William of Ockham did not deny that a created order exists. But they held that God was not strictly bound by the order he had instituted. It expressed what they termed God's potentia ordinata, which was subordinate to his absolute power, his potentia absoluta.
Ockham introduces a note of contingency into the picture; thus, for example, God can save a person lacking in charity and by his power two bodies can exist in the same place at the same time. Created nature does not constrain the power of God fully, any more than an established system of laws constrain a truly sovereign ruler … Absolute power remains in the realm of possibility — haunting temptation if the analogy is drawn to earthly power. The dialectic of potentia absoluta and potentia ordinata grows ever more important . Potentia absoluta is the domain of God's unlimited freedom abstracted, finally, from his commitment de potentia ordinata. ( pp.26, 38–9)
The scope of this absolute power occasioned much dispute, but some thinkers went so far as to claim that God need not obey the law of contradiction. Elshtain says that St. Peter Damiani maintained that God could bring it about that a past event never happened. "For God 'can undo the past — that is, so act that an actual historical event should not have occurred'" (p. 22, the quotation is from Francis Oakley). It should be noted, though, that some scholars think that this is a misinterpretation of Damiani's view.
Elshtain excellently highlights the distinction between the two kinds of power, in her characteristic vivid style; but in one respect she seems to me to go astray. She calls the view that stresses the unlimited character of God's absolute power nominalism as well as voluntarism. This usage is not peculiar to her, but it wrongly connects positions on two different issues. Nominalism is a view about properties. If we say, e.g., that a rose, a stoplight, and fireman's uniform are all red, what is the nature of the redness that they share? Is it a property that exists independently of our concept "red"? If so, does this property exist apart from red objects? If not, is the concept "red" anything apart from the word "red"? Nominalism comes in a number of varieties, but it answers that properties are verbal or at most conceptual.
Nominalism leaves open the question of whether there are unalterable laws of nature or ethics, though perhaps nominalists who believe in such laws would have to state them differently from realists. Elshtain says that nominalism "breaks things down into particulars" (p. 37), but it does not follow that all relations between particulars are contingent. Further, one can reject nominalism and embrace voluntarism. Duns Scotus took just this view, and it is a mistake to call Scotus a nominalist.
Enough of this arid objection. Elshtain highlights the parallel between stress on God's absolute power and the view that the sovereign can if need be abrogate all laws. (Her book displays her considerable learning, but she surprisingly does not cite the great work of Amos Funkenstein, Theology and the Scientific Imagination [Princeton University Press, 1986], crucially relevant to her main theme.) As she rightly notes, Carl Schmitt emphasized the power of the sovereign to make exceptions to the laws, but he did not originate it.
Medieval legists mined Justinian's famous sixth-century Code to put forward a case that the emperor's power is not altogether bound, no more than God's … This is the famous doctrine of what came to be called "the exception" or "prerogative" and is sometimes taken, mistakenly, as the innovation and contribution of the twentieth-century political theorist (and Nazi sympathizer ) [Carl] Schmitt. But the notion is venerable, trailing in its wake the dust of centuries. (p. 32)
Elshtain discusses claims of power advanced by popes and emperors. One example must here suffice. She points out that Gregory VII claimed that he could release subjects from their allegiance to the emperor. Gregory
excommunicated [Emperor] Henry [IV] and stripped him of his royal prerogative — deposed him, in other words, claiming as he did so, that this was well within the prerogatives of the papacy, the "binding and loosing" authority. (p. 46)
She points out that supporters of royal power were quick to adapt papal claims to their own very different purposes. "The articulation of a plenitude advanced by medieval canonists was appropriated by legists in the service of ambitious earthly monarchs and turned against the papacy" (p. 44).
Elshtain finds in the sixteenth-century French writer Jean Bodin a key source for the doctrine of absolute sovereignty:
There was nothing shy about Bodin's articulation. The king is a supreme force, the way in which God appears on earth. Without him there can be no commonwealth … The prince's power is double, with majestas, his absolute and unbound power, tethered to a legal, or bound authority. Law is the command of the sovereign. Somewhere in the state … there must be a supreme authority. (p. 54)
Although Elshtain has grasped a strain in Bodin's thought, I think that she exaggerates Bodin's absolutism. As Eric Voegelin, Bodin's most profound interpreter, notes,
The prince is the sovereign lawgiver, but he is restricted as to the content of his statutory power by natural and divine law … The marvelous juristic mind of Bodin reveals itself again on this occasion as in the technical remark that strictly speaking the prince cannot act against the law of God, his seigneur, because through the very act of violation of divine law he loses "the title and honor" of a prince.
Elshtain has insightful things to say about Hobbes, and she rightly sees Carl Schmitt as a Hobbesian:
The rights of this sovereign [for Hobbes] are not conditional, as in versions of the potentia ordinata, but unchained. The sovereign alone judges "all doctrines and opinions," has the right to make rules, judge, go to war, and reward whom he will. Subjects submit — that is their job description — for in the act of submission lies one's liberty … The twentieth-century thinker who revived Hobbes in full-blown unapologetic form is the controversial Carl Schmitt … (pp. 108, 115)
One of her comments on Hobbes, though, makes something out of very little. She says that Hobbes
deploys this knowledge [of Scripture] to his purposes through sleight of hand as he redescribes basic scriptural norms and injunctions. For example, the positively cast "Do unto others as you would have them do unto you," Hobbes recasts negatively, "Do not that to another, which thou wouldest not have done to thy selfe," as if this is no major alteration at all in the verse. There is, of course, a difference. Hobbes references passive inaction — do not do — rather than positive action — do. (p. 112, emphasis omitted)
In a note, she says, "very few pick up on Hobbes's playing fast and loose in this way" (p. 290, note 59).
Hobbes did not make up the negative golden rule. It is found in the Book of Tobit 4:16: "see thou never do to another what thou wouldst hate to have done to thee by another." Further, Hobbes quotes with favor the positive injunction, "Thou shalt love thy neighbor as thyself" (see, e.g., De Cive, Chapter IV, Section XII).
One of the best parts of the book is the interpretation of Rousseau. In contrast with many recent writers, Elshtain is fully alive to the totalitarian implications of the general will.
Rousseau pays considerable attention to bodies, human and collective. He fuses the many into the one: The body's many members must be as one and become such via the general will … With this infusion of transcendence, Rousseau winds up with a unitary, monistic version of sovereignty that levels everything that stands in its way — particular wills, particular faiths, anything that might prove an irritant in the image of the indissolubility and indivisibility of sovereignty. Taken in the round, Rousseau's work adds up to an entire creedal system. (p. 131)
Elshtain passes from the state to the self: "A streamlined version of my thesis would go like this: as sovereign state is to sovereign God, so sovereign selves are to sovereign states" (p. 159). She does not discuss modern libertarianism, but it would not surprise me if she views it as an expression of the sovereign self. In my opinion, this would be a mistake. Libertarianism, as Rothbard often emphasized, is firmly committed to natural law and is not an antinomian theory. Elshtain is right to stress the dangers of the sovereign self, which holds itself not bound by moral limits. She finds this baleful view in proposals for eugenics and human engineering:
Once you put wills in motion … you are headed for a clash, a fight even under death. Someone must triumph. This scenario works best if one's "opponent" can be dehumanized or demeaned, as those who push eugenics and euthanasia have done historically and presently, characterizing their opponents negatively and with considerable success. (pp. 209–10)
Elshtain's book is an expansion of Gifford Lectures that she delivered at the University of Edinburgh, and it is a distinguished addition to that famous series.
 The review and the exchange of letters are in The Mises Review Summer 2003.
 In Just War Against Terror, she adopted a much more restricted interpretation of Gregory's claim, but she has rightly altered her position.