Hugo Grotius and the Jewish Question: VI Political Theology

My previous five blogs dealt with the following:

I Sovereignty

II Grotius and Spinoza

III Spinoza

IV Menasseh ben Israel

V Theology and Revolution

In the last blog in this series, I want to review the previous five blogs, but within the context of political theology. What is political theology? It is a doctrine that the secular cannot be divorced from the sacred. If a divorce is attempted, parts of the secular world will be made sacred, and that can be very dangerous as evidenced by the relatively mild case of laïcité in France and in Quebec, and the very serious case of the national socialist movement (Nazis) in Germany. For without sacred ground, there is no solid foundation for political authority.

The topic was brought to the forefront of political thought by a German National Socialist (a Nazi), the German jurist and professor of law, Carl Schmitt, in his 1922 book, Political Theology: Four Chapters on the Concept of Sovereignty. His 1915 equivalent to a master’s thesis was titled, On Guilt and Types of Guilt. His equivalent to a doctoral thesis in 1916 was called The Value of the State and the Significance of the Individual.

He also wrote:

Dictatorship (1921)

The Crisis of Parliamentary Democracy (1923; 1926; 1988)

The Idea of Representation: A Discussion (1931; 1988)

The Concept of the Political (1932; 1966; 2007)

The titles alone suggest where he stood in terms of politics.

However, the titles may suggest what he believed, but they do not indicate how those beliefs were translated into significant action. And I am not just referring to his joining the Nazi Party as a radical antisemite or to his active participation in the bonfires burning Jewish books as un-German or anti-German. In 1932, he was the counsel for the Reich government in opposition to the deeply socialist Prussian government that was suspended by the right-wing government of Franz van Papen. The court ruled against the Reich by concluding that the suspension was illegal, but, based on Schmitt’s innovative arguments, the court nevertheless ruled that the Reich had the right to install a commissar in control of decisions. This ruling effectively destroyed the federalism of the Weimar Republic. It also set the precedent for sidelining President Paul von Hindenburg and allowing the newly installed Nazi government to rule by decree or, as they say in America, by executive action.

Modern political theory, constitutional law and international law, as conceptualized by Hugo Grotius, rooted sovereignty in the people rather than a singular all-powerful monarch on the basis of a covenant with God. As conceived by both Thomas Hobbes and John Locke, the original covenant was simply a social contract made amongst a group of people to constitute a state in which their natural powers were delegated to either a ruler or a legislative elected authority, primarily a transactional exercise in Locke. Hobbes, as we shall see, legitimized authoritarian rule because the sovereign people of their own free will deeded their authority to a singular all-powerful ruler. Locke argued that the people would not surrender their power to anything but a legislature and executive branch that they continued to control. As we have seen, Grotius took neither of those two paths, but continued to insist that the prime covenant must be made between God and humans. The prime source of authority was still the sacred.

In the decision to make the people sovereign rather than a singular divine authority of His representative, for Schmitt, the foundation of the political was not and could not be rooted in human rational choice theory but had to be based on a theology that gave primacy to one voice over another. The shift from a divine source of authority to the people was not itself a matter of choice, but a paradigm shift that itself was irrational and, therefore, theological since it went beyond reason into the realm of faith.

As I wrote in my first blog in this series, we are witnessing the reintroduction of theology of the irrational into politics, not just over issues like abortion, gay marriage and euthanasia, but in the emergence once again, this time, in the most powerful nation in the world, of a leader who believes he stands not only outside of and apart from the legislative authority of the state rooted in the people, but outside of the fundamental conception of the people as sovereign. Trump believes that the leader is sovereign because the leader is in tune with and knows the will of the people. Trump may just be a Hobbesian dictator, but I suspect not, since in his thinking, there is no reference to the people delegating power to a singular person. They voted for him because his people identified with him.

Thus, for his base, it does not matter what intellectual elites say. Rather, the members of his base feel as if those elites condescend towards them. In contrast, Trump speaks their language and says what he thinks, and assumes that because he thought it, that it must be true since he said it. It does not matter that Trump lives in a penthouse with gold taps or is a billionaire, the members of the base feel that they are seen through him. The members of the base believe that members if the intellectual elite do not see them, know them or desire to know them.

This has created a constitutional crisis, not because the elected leader has assumed he has been placed in power by the will of a collectivity, but, more importantly, because a supine political party that once rested totally on the rule of law, totally on individual rights, totally on rationalism and self-interest, has been inverted and surrendered its legislative authority to a lawless autocrat who can turn international diplomacy into a personal transactional exercise rather than a defence of national interests.

However, perhaps that should be no surprise. After all, the party of individualism, the party of free enterprise, always did take its communitarian base largely for granted. It was Richard Nixon who saw the necessity of joining the issue of security on the international stage to security on the domestic stage and winning the Deep South to the Republican cause by appealing to the presence of racism in most Americans at the time. Even more importantly, the Republican Party knew that it was the party of the Revolution, the party forged by the Civil War, the party that, in the name of the “sacred union,” declared war on states in which their members’ representatives voted democratically to secede. Did the political body of each state in a federation have the right? Or did the constitution create a covenant which made the nation indivisible? For Schmitt, the choice of which sense of the sacred was right could not be determined by reason, but only by unreason and, hence, the resort to violence.

In fact, America had been born through such a choice, through revolution. In the international realm, were the treaties made between Native Americans and Britain sacrosanct or were they simply instruments of an imperial power to keep a vibrant new nation within boundaries? The key issue in the Civil War then became how do we decide, or who decides who is sovereign and what is the characteristic of that sovereignty domestically? How do we decide and who decides whether or not to base ultimate authority in the hands of a democratically elected legislature and who has the right to belong to that body who delegates responsibility to a legislature? The answer Grotius offered still resided in the sacred and was never separated from sacred authority?

Grotius used the biblical text as his authority that insisted that God gave that authority initially to a people, the Israelites who spoke a common language, forged a national identity and were rooted in a specific territory guaranteed them by God. God did not give that authority to an institution like the Roman Catholic Church so that it could ultimately reside in a pope and through the device of the king’s two bodies, a secular king that erred and a sacred one that expressed divine authority. Who then was there to sanction a monarch as possessing a divine right to rule? The Jews were a light unto the nations and the Dutch nation had come to see that light. In imitation of the Jews, they insisted that, through revolution, they could and would earn the right to rule themselves as a nation state.

For Grotius, in contrast to Hobbes and Locke, sovereignty was not a matter of a random collection of persons coming together in a state of nature to forge a state at a time when the nation and the state were created at one and the same time. Rather, the nation preceded the state. It had a common linguistic and cultural heritage and an attachment to a specific territory. But in history, it was just as much or even more that the battle with Spain over the freedom and self-determination of the Dutch, as well as an escape from Roman Catholic repression, that forged the nation. Nation states were born in blood – or, in the case of Canada, the fear of blood.

That is, as Schmitt argued, revolution, the recourse to violence, the willingness to sacrifice oneself for a cause. Revolution and blood sacrifice were critical. In other words, sovereignty comes to the fore in the context of a crisis. There is currently such a crisis in the U.S.A. today. Democrats, and three of the eminent legal scholars who testified last Wednesday, argue that the national interest had been compromised and that foreign powers had been invited to intervene in an American election – arousing a deep-seated fear that foreign interference would undermine the sacredness of the insulated electoral process. In the abuse of that sacred right, the elected monarch of the United States posed as a traditional monarch, one above the law and one capable of denying witnesses and evidence to a duly elected committee of the House of Representatives.

I insisted in my opening blog that it was necessary to go back to sources, which was also the insistence of Grotius. Natural law emerged in history and could not be conceived as an abstraction forged in a state of nature divorced from history. The secular state governed by its people in accordance with the rule of law emerged from a sacred text. Grotius was not a modernist who divorced the sacred and the secular, just the church and state. Though he had a secular agenda, he supported that by reference to the Bible and, in particular, the emergence of the Israelites as a nation governed by the rule of law.

To repeat what I wrote in my opening blog in this last series, “Grotius propounded a theory of sovereignty based on a doctrine of natural law independent of the will of God and deriving its existence from the nature of man as a rational being who seeks a society consonant with his intelligence. Reason provided the basis for justice in the state and justice among states, both in peace and in war.” But the fault line remained the juncture of the sacred and the secular. And underneath that fault, was violence, war and conflict, the resort to which Grotius tried to restrict to the rational. Resorting to violence required a just cause (in contrast to conquest or revenge). The threat had to be imminent and self-defense must be the ultimate justification. Those who decide must be rightfully constituted authorities and consider the resort to war a last resort adopted to overcome a serious injustice.

But who decides who is the rightfully constituted authority, especially when the conflict is precisely over that issue? Who decides whether abolishing slavery is a just cause or, alternatively, the principle of states’ rights and self-determination is? Grotius did not resolve those issues. However, by alluding to the biblical record, he argued that God’s message and the true answer to that bedevilment was revealed in using critique to understand the intention of the Biblical text. The secular remained firmly rooted in the sacred even as it sought its independence.

“A doctrine of a right of rebellion explained the nature of sovereign authority within the state; a doctrine of just war was used to explain the nature of the sovereignty among states. Sovereignty, internally considered and defined by will and externally considered, defined by consent, derives its content and meaning, and its force of obligation, from the nature of man, from the law of nature, hence, natural law theory.” War between and among nations was to be determined by a compact among nations.

With the help of Alex Zisman


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