Tuesday, November 09, 2004

From the Mail: Theocracy and Legislating Morality

Christopher Assenza writes:

Mr. Vallicella,

Not too long ago, I was wrestling with questions about "moral legislation" and theocracy in the USA, so I was rather pleased to see the subject show up on your site. When the issue first caught my attention, I stumbled across an interesting article about C.S. Lewis' views that tied into the issues at hand

There are many items to deal with in that article, but I'll limit myself to one for now - the definition of theocracy. Webster's says that a theocracy is: "government of a state by immediate divine guidance or by officials who are regarded as divinely guided." However, it seems like when I hear theocracy mentioned today, people mean something different. I get the impression that a definition of their word might be: "government that legislates morality as described by a specific religious creed regarded as divinely guided." While the divinely guided part is the same, it seems that the two definitions describe different concepts. The former reminds me of old Japan (as one of many examples), where they thought the emperor was in fact a god among them. I cannot imagine anyone wanting that in the US today. The latter requires us to distinguish what is commonly called "natural law" from "religious law." This task is difficult (and perhaps meaningless depending on your disposition) because the two often seem to overlap. When does a law become explicitly religious and thus theocratic by the latter definition? Would a constitutional amendment to make the US an officially Christian nation also make the US a theocracy? Given Webster's definition, I wouldn't think so, but the other is not so easy (interestingly enough, this was actually tried in 1894, though I've been unable to find much information on it).Perhaps we shouldn't waste time with the latter definition (since it is arguably not a correct one) and instead focus on clarifying the true meaning of the word to illustrate that the US and most Christians in it do not wish for theocracy? I would be most interested to hear your thoughts on this potentially tricky subject.

Best,Chris Assenza

P.S. Thank you for providing such an insightful and entertaining blog, it's the first and only one I've encountered that I read on a regular basis!

BV: Thanks for your kind comments. I'm glad you are getting something out of my blog. Your questions go deep, and I'm no expert on this subject. But I'll make a few remarks.

1. I use 'morality' and 'ethics' interchangeably. The only difference between them is that between Latin (mores) and Greek (ethos). Anyone who sees a distinction here needs to explain what it is. It is of course a mistake to identify morality with sexual morality. Morality/ethics is concerned with human behavior in general from the normative point of view. That is, morality deals with what people ought to do and leave undone. It is a prescriptive/proscriptive enterprise rather than a descriptive one. The latter enterprise falls within such empirical disciplines as anthropology, psychology, and sociology.

2. All legislation is the legislation of morality. For laws specify what people ought to do and refrain from doing. Now what does a law (against kidnapping, say) rest on? The mere whim of legislators? My view is that the positive law, the law enacted by a legislature and enforced with state power, derives its content and its legitimacy from moral laws that are not the mere product of legislative decisions. In other words, what makes a positive law binding and worthy of respect is not the mere fact that it has been enacted and enforced, but that it reflects a logically antecedent moral law.

One who denies that would have to say that the laws that stripped Jews of their property in Nazi Germany were right and just in virtue of the mere fact that they were enacted and enforced. Anyone who thinks, as I do, that these laws were unjust is appealing to a standard of justice apart from the positive law. 'Illegal law' is a contradiction in terms; 'unjust law' is not.

Morality and legality are distinct. What is legally permissible need not be morally permissible; what is legally impermissible need not be morally impermissible; what is legally obligatory need not be morally obligatory.

3. Now if you grant that the moral is distinct from the legal, and that the moral is antecedent to the legal, then the question arises as to where moral prescriptions and proscriptions come from. This is a tough question! But suppose one says that moral prescriptions/proscriptions derive from God. God commands man (through a prophet such as Moses) to behave thus and so: don't kill, steal, commit adultery, etc.

If one believes this, does it make him theocrat? I'd say no. If 'theocracy' is to mean something definite, it must mean rule by priests, or clerics generally, of a definite denomination. It must also include the imposition of a very specific code in every aspect of life, with no distinction between public and private spheres. This is because religion, but its very nature, makes a total claim on a person. But it is not in the nature of a state that it make a total claim on a person. A state need not be a totalitarian state. But how could a religion fail to be totalitarian? Religions regulate every aspect of a person: deeds (whether in public or in private), words, and thoughts.

Suppose someone holds that killing, stealing, and adultery are wrong, and that the wrongness of killing, stealing and adultery rests on divine prohibitions, and that state power should be used to enforce laws against killing and stealing but not against adultery. Such a person would not be a theocrat or 'theonome' by my definition. For such a person would be distinguishing the public from the private and holding that not everything immoral should be illegal. Adultery, though immoral, would not be illegal but would be a private matter beyond the jurisdiction of the state.

Perhaps we can define a theocrat as one who holds that (i) everything morally impermissible according to a definite religious code (Islamic Sharia, for example) should be legally impermissible; (ii) everything morally obligatory according to the same code should be legally obligatory. Such a person would reduce legality to morality of a definite type and then use state power to enforce this morality in every aspect of life without regard for any distinction between the public and the private. A theocrat would then be someone who rejects church/state separation by disallowing any laws that are not religiously grounded, and by requiring that all religious prescriptions/proscriptions be enacted into law and enforced with state power.

The theocrat would then a a totalitarian in a rather straightforward sense of the latter term.

Liberals and leftists who think that re-election of George W. Bush is leading us toward a 'fascist theocracy' are singularly delusional.

In sum, someone who holds that moral prescriptions/proscriptions derive from divine commands and that some of them should be enacted and enforced as positive laws is not a theocrat. Such a person can embrace the principle of church/state separation by holding that certain moral prescriptions/proscriptions should not be made into law.