Our Law and God’s

by Kieran Healy on December 13, 2004

As “Brian notes”:https://www.crookedtimber.org/archives/002985.html (via Kevin Drum), there are “some people”:http://www.latimes.com/news/opinion/sunday/commentary/la-oe-kranna12dec12,1,4469435.story?coll=la-sunday-commentary who think that

bq. [Clarence] Thomas is one of the few jurists today, conservative or otherwise, who understands and defends the principle that our rights come not from government but from a “creator” and “the laws of nature and of nature’s God,” as our Declaration of Independence says, and that the purpose and power of government should therefore be limited to protecting our natural, God-given rights.

My feeling is that objections to Clarence Thomas’s jurisprudence should focus on what we think people’s rights are, substantively, rather than where we think they come from. But let me comment on the God vs Man question anyway. Actually, let Roberto Mangabeira Unger comment on it, from his “Politics”:http://www.amazon.com/exec/obidos/ASIN/1859841317/kieranhealysw-20/ref=nosim/:

bq. Modern social thought was born proclaiming that society is made and imagined, that it is a human artifact rather than an expression of an underlying natural order.

The “Constitution of the United States”:http://www.house.gov/Constitution/Constitution.html is a decisive political expression of this conviction. It doesn’t preclude deep and shared religious convictions — it just doesn’t presuppose them. Having lived with this way of thinking about the social order for a few centuries, we know it threatens to create more problems than it solves. The hubris that leads to disastrous ventures in social engineering rests on it, as does the easy cruelty that always blames victims for their own misfortunes. Note that both of these vices can be found in religiously-motivated pictures of the world: the former in the zeal of fanatics who take it upon themselves to remake the world according to God’s plan, whether we like it or not; the latter in the complacent insistence that even the most vicious injustice must be part of God’s plan for us all. In many ways, modern ideologies — from a belief in the virtues of centralized planning to a commitment to the infinite wisdom of the market — are just secularized versions of essentially religious ideas about the perfectibility of human beings or the inevitability of fate. After Darwin, things get more complicated because a Social-Darwinian order could be presented as having the authority of nature without the contrivance of God. Because of Darwin, the boundary between what is given by nature and what is susceptible to reorganization became a dominant trope in 20th-century social thought. Nevertheless, the shift that Unger identifies is still a decisive one. The idea that society is a human artifact is what makes the political life of modern societies distinctive, if anything does.

*Update*: In comments below, Nicholas Weininger complains that “Unger’s dichotomy reads Hayek right out of the history of social thought.” I think this is wrong. For Hayek, the social order is certainly a human product, but (as Nicholas says) it’s not something that’s consciously designed. This was why I contrasted the pitfalls of believing everything could be planned with believing that everything would spontaneously order itself. The first is a vice of the left, the second, of the right. (Those are descriptions of tendencies, by the way, and not fair characterizations of particular thinkers like Marx or Hayek.) The bit above about Darwin is relevant too, as you can see a strong streak in libertarian thought about the inevitable failure of planning efforts due to planning’s incompatibility with the natural (but not divinely-given) tedency of societies to co-ordinate in a distributed way. In that sense Hayek is certainly part of the debate about “the boundary between what is given by nature and what is susceptible to reorganization.”

This shared commitment to seeing the social order as a human product helps explain why secular left-wing thinkers and libertarian types have tended to have more productive arguments with each other than either have with conservatives who see society as manifesting a divine order. The socialist calculation debate in economics is one example of this.



ChrisPer 12.13.04 at 8:57 am

Hm. Another opportunity for a sophisticated cheap shot at Bush? It must be great to be so well educated and yet not have the running of the world in your hands. (That’s another cheap shot.)

It is a sophistry to claim that the liquidation of the Kulaks, the Jews and the educated class of Kampuchea result from religious ideas, purely by your own administrative redefinition. They are the product of extremist realpolitik, groupthink and self-righteous moralism; the ultimate expression of “society is made and imagined, that it is a human artifact”.

While churchgoers are liable as leftist killers to suffer groupthink you are going a far stretch to claim that genocide is the property of the religious, at least in the last hundred years.


washerdreyer 12.13.04 at 9:36 am

You misread Kieran’s post. He states that modern social thought, the idea that society is a manmade construct, “threatens to cause more problems than it solves.” He then provides two examples of this problems. Next, he notes that religious social thought can have the same problems. You responded as if he had said that only religious social thought had these problems. Since I don’t know you, I won’t speculate as to whether or not this misreading was intentional or possible motivations behind the misreading.


washerdreyer 12.13.04 at 9:41 am

The third sentence should have read, “…two examples of these problems.” The last sentence should have read, “…or as to possible motivations…” Sorry, it’s late.


abb1 12.13.04 at 9:57 am

Well, whatever new problems The Enlightenment brings, hopefully the the Dark Ages period is gone forever. Althought sometimes I wonder…

The dichotomy here is really between reason and superstition; and while reasoning can sometimes get you carried away, at least you get a chance to learn by your mistakes.


vernaculo 12.13.04 at 10:05 am

A “human artifact” meaning a product of human artifice. Distinctive meaning good, worthwhile, necessary.
We make these things like bricks out of the muck of superstition and necessity. Robert’s Rules of Order as human revelation.
You’re real close to a problem that’s whispy and vague yet absolutely central to this moment.
We have these tools that were given to us, handed down and refined along the way, by people who had less of a grasp on virtually every aspect of what it is to be alive than we do now except one, that of being human. We’re no closer to understanding that than Madison or Hume or Aristotle or Vico or anyone else, collectively or as individuals.
What’s easier to see, once you get the template for it, is the appeal to specific groups of specific doctrinal positions. Arguing for the universal good of mankind often masks an argument for the immediate benefit of a specific segment of existing mankind.
Thus we have religious delusions trumpeted by people whose surivival index is amplified by the strength of those delusions to bind them together. And it’s the same with secular political philosophies. Democracy being a kind of meta-version of that – doing things for the good of the majority will always appeal to the majority, just as things that are good for any given minority will generally appeal to them in turn.
Someone who believes the specific dogma of any of the fundamentalists of the world isn’t going to put democratic function above the dictates of their own creed, it’s specious to think they might, wishful thinking. So then what?
It might help to think of it as a more elemental struggle than it currently appears to be.
It’s not about sharing, it’s about getting a controlling share and creating a theocracy. We’re not discussing this with rational actors, we’re discussing this, when we do, with minds that have gambled everything on a fixed view of the world, so that relinquishing that view will mean mental and spiritual breakdown, dissolution, collapse. Not only are they fighting for physical survival as a group, they’re fighting for mental cohesion as individuals; and that means they have to maintain the walls of their delusional systems, rigorously, vigilantly.
Pointing out to people in positions like that that they owe their present freedom and the acceptance of their behavior by their neighbors to the tolerance that was built into the political system they’re now threatening with intolerance and destructive moral values, isn’t going to do much.
That I think was the idea behind the insistence on separation of the powers of church and state.
But true believers had to be cowed into accepting that separation, and have had to be cowed into accepting it ever since. By superior force as well as reason.
The really exciting thing is that there is, built in to the fundamentalist methodology, a mechanism for turning oppositional energy into a forward dynamic. So that saying publicly at this late hour that the Children of God should submit with the rest of us to a co-operative assembly – a compromise for the common good – is a snare, the seductive phraseology of evil.
As preposterous as it sounds I think it’s accurate, except for the valence of moral right and wrong. These are people whose lives depend on the organizations to which they submit, marginal people whose lives will become only more so in a secular society, but who find the very qualities that make them marginal – dull-witted credulity, timidity and herd-like docility – cherished and valued in the institutions they put above, and that put them above, such dangerous ideas as liberty and equality.
The beauty of Unger’s view is in how tenuous this order is, and how fragile. Which makes the responsibility of preserving it that much greater.


Dave 12.13.04 at 11:55 am

“The idea that society is a human artifact is what makes the political life of modern societies distinctive, if anything does.”

Given that the greeks were discussing how much of a human artifact society may be more than a couple of millenia ago, and seeing as how it is likely that those ideas were not exactly something new under the sun even then, I find this thesis about as tenable as the proto-Holbovian “no good movies were made before Star Wars”.

What made the 20th century distinctive was that people forgot how the last time they’d tried killing off on an industrial scale everyone who disagreed with them (reformation and counter-) it had pretty much ended up in misery all around.


rob 12.13.04 at 1:19 pm

Notice that the two positions can be cojoined: we can remake the social world the way God would like it. As long as you can find some explanation for why the world isn’t the way God would like it, you’re fine.


rob 12.13.04 at 1:21 pm

Notice that the two positions can be cojoined: we can remake the social world the way God would like it. As long as you can find some explanation for why the world isn’t the way God would like it, you’re fine.


Sam Dodsworth 12.13.04 at 2:25 pm

Given that the greeks were discussing how much of a human artifact society may be more than a couple of millenia ago…

My impression is that the Greek view was generally that moral law was as objective and external as physical law, and that the discussion was an attempt to extract those laws from the unrefined mass of ‘common sense’. Are there even any Greek philosophers who talk about rights rather than right actions?


jr 12.13.04 at 3:25 pm

You don’t need Unger to see that what we have here is a simple non sequitor. Thomas is said to understand that “our rights come from a … “creator” and that the purpose and power of government should THEREFORE be limited to protecting our natural, God-given rights.” How does the proposition that rights come from God require the conclusion that government must be limited to the protection of those rights? Is there a God-given right to paved roads? Or should the government get out of the road business and have us do the Godly thing by driving off-road vehicles to the mall?


Ophelia Benson 12.13.04 at 3:28 pm

“My impression is that the Greek view was generally that moral law was as objective and external as physical law, and that the discussion was an attempt to extract those laws from the unrefined mass of ‘common sense’.”

Nope. Read the Gorgias or Protagoras, for instance, or Thucydides, or Euripides.


junius ponds 12.13.04 at 3:32 pm

>My impression is that the Greek view was generally that moral law was as objective and external as physical law< Relativism was fairly common among the sophists; Thrasymachus in _Republic_ I (justice is the advantage of the stronger) and Callicles in _Gorgias_ are two examples.


Sam Dodsworth 12.13.04 at 4:08 pm

I’ll gladly accept Plato’s sophists, and stand corrected, but I don’t think it’s easy to read Thucydides as advancing a relativist position. Unless you’re claiming that the Melian Dialogue was reported verbatim?. (I also think there are more nuanced readings of Euripedes than the one in “The Frogs”.)


Sam Dodsworth 12.13.04 at 4:13 pm

“Euripides”, obviously. God, I feel a fool.


Nicholas Weininger 12.13.04 at 4:42 pm

I note that Unger’s dichotomy reads Hayek right out of the history of social thought. “A product of human action but not of human design” is to my mind a better and more compelling account of society than either of his alternatives. In particular, it warns against the false proposition that “not given by nature” implies “amenable to deliberate reorganization”.


Ophelia Benson 12.13.04 at 4:56 pm

No, I wasn’t saying Thucydides was advancing a relativist position. But he reports on people who were. I was just pointing out that the issue was very much under discussion – that the Greek view wasn’t one of uncomplicated unquestioned unanimous belief that morality was external and objective. But I did it in a quick and lazy way, so my meaning was not clear.

(And you’re right, Aristophanes is another good witness.)


winston smith 12.13.04 at 6:41 pm

We’re going to keep fighting these same battles over and over again until we take on the divine command theory of morality head-on. That theory’s a non-starter. Conservatives have the edge in these debates because, though most people recognize that cultural moral relativism is radically implausible, few recognize that the divine command theory is just as implausible, and for similar reasons. Specifically, both theories entail that moral obligations are rationally arbitrary, thus robbing morality of any rational authority and amounting to covert nihilism.

We need to take this battle to them instead of playing defense all the time.


Lee 12.13.04 at 8:04 pm

I think the most interesting thing is the slipperiness involved in evolutionary explanations of society that have “the authority of nature without the contrivance of God.” Maybe someone else will find this chapter I found on Hayek as insightful as I did. It’s about how he sometimes pushes evolutionary explanations too far.



Eddie Thomas 12.13.04 at 8:37 pm

As Rob notes in his comment, a recognition that the political order is made does not preclude the possibility of unmade standards that guide that making. It simply precludes the possibility that we have simply inherited the ideal political order or that it has been described to us by revelation.


Sam Dodsworth 12.13.04 at 10:50 pm


You evidently take Thucydides a lot more literally than I do. I’ve always thought that he’s not so much reporting outbreaks of relativism as criticising the Athenians by making their rhetoric match their policies. Not that there’s anything wrong with your reading, mind you.

As for Aristophanes… I take his treatment of Euripides (and Socrates, for that matter) more as an indicator of the mood of the times than a useful portrait. People were certainly worried about relativism, whether it was common or not.

All that having been said, though, I still don’t think there’s much about rights or the social contract in ancient Greek thought. Perhaps the modern innovation was finding a way to make relativism work?


ChrisPer 12.14.04 at 12:49 am

washerdreyer, thanks for correcting my misreading. My apologies Kieran.


Citizen 12.14.04 at 1:57 am

I am so tired of hearing people respond to this issue by saying it does not matter where one thinks human rights come from. Of course it matters.

Justice Thomas’ belief that human rights are given by his god allows him to shrink the list of god-given rights to fit his particular faith…and worldview. Justice Thomas’ god, for example, does not give people the right to be gay (he thinks its silly to ban buggery but of course one does not have right to sin!) or whether to burn their nation’s flag. This belief in divinely bestowed rights allows Justice Thomas to decide that certain symbols are either so sacred or so profane that the First Amendment does not apply to them.(See his dissent in Virginia v. Black).

When the Ninth Circuit ruled that the inclusion of “under God” violated the First Amendment President Bush said “America is a nation … that values our relationship with the Almighty…We need commonsense judges who understand that our rights were derived from God.”(http://constitution-first.org/reaction_to_pledge.htm )

“We acknowledge the separation of sectarianism and state, but affirm the belief that there is no separation between God and state,” said the Senate Chaplain, before convening the session at which the Senate condemned the 9th circuit’s ruling. (Id.)

The Supreme Court has in the past endorsed this view. In 1952, at the same time the words “under God” added to the pledge in response to “godless communism, Justice Douglas declared, “We are a religious people whose institutions presuppose a Supreme Being.” (Zorach v. Clauson)

But, alas, the god Justice Thomas prays to is not very generous with his rights dispensing. He (or is it a She?) gives out rights, just not that many) One must be a citizen to enjoy the privileges of membership. (Guantanamo Cases)

People like Thomas and Scalia believe that the authority of government, and human rights, come from their god. Anyone who does not see how fundamentally at odds this is with the American endeavor must believe the same thing or just isn’t paying attention.


Rob 12.14.04 at 11:22 am

I think the confusion I mentioned earlier is still going on. Nicholas does it (Hayek says we shouldn’t reorganize society, therefore saying that society is in some way a human construct writes him out of the history of social thought), the discussion of the Greeks is doing it (I know nothing about Greek philosophy, but it looks like ‘x held this moral view’, ‘no, x held this other moral view’), and citizen is certainly doing it (‘it matters where human rights come from’: yes, but does that necessarily have anything to do with your view of how society came to be the way it is?). Ethics and sociology are not the same thing, and I think Kieran has encouraged the obviously false view that they are by confusing them in this post. Equating the recognition that societies are built up out of a set of contingent human actions with secular liberalism is deeply misleading, both in terms of the secularism and and the liberalism. Locke appealed to the divine law to justify social institutions which were definitely human constructs according to his philosophical anthropology, so you can have religiously motivated ethics and believe in the human construction of social institutions (Alisdair MacIntyre also springs to mind, and I’m sure there are innumerable others). Burke, on the other hand, seems to have thought that we were bound by the social contract of our fathers, which must mean he thought that society was to some degree the product of contingent human actions, but was not by any stretch of the imagination a liberal. Indeed, society as contingent, yet a thing we ought not to interfere with, seems to be a fairly common conservative trope: one might say it was the core of their view.


Thomas 12.14.04 at 8:42 pm

rob–I think your point is mostly on the mark. But a small bit remains on the other side: Thomas’s view (as represented)–that the community, acting through the apparatus of the state,is a divinely ordained moral actor–is at odds with any view that believes that society is contingent artifact all the way down. It doesn’t mean much in practice–we are always in our society, not in a state of nature (whatever that would mean)–but it is a difference.

I’d think that Kieran would feel this difference most especially in his conversations with libertarians, who generally deny that the community acting through the state has any moral standing of its own. Generally, secular left-wingers and conservatives end up on the same side of that discussion, with libertarians on the other side.


rob 12.15.04 at 12:28 am


I don’t think that’s even true. Thinking that society is contingent all the way down does not prevent you from thinking that we could intervene in it. Granted, if you think that the contingency of society is wholly uncontrollable, random, as it were, that intervention becomes impossible. This does not mean that you don’t think it would be better to intervene, note, just impossible. You would become a kind of libertarian by default (and a weird kind of libertarian, because all the libertarians I know of think that the state should intervene to enforce self-ownership rights, which would seem to indicate that they don’t think the society is totally unamenable to state interventions). Anyway, most people don’t think of contingency that way: a given society is the product of particular contingent factors, which can be manipulated by the state and other actors to some greater or lesser degree. So acknowledgement of contingency does not necessarily have to effect your (abstract) political-theoretical beliefs. The disagreement between liberals and libertarians is all about political-theoretical beliefs, not about sociology (at least in terms of society as contingent or operating to a divine plan).


rob 12.15.04 at 12:42 am


sorry, you’re right about Clarence Thomas, he can’t think society is contingent all the way down. Some ethical beliefs have necessary sociological implications (although I don’t think it runs the other way).


Thomas 12.15.04 at 5:13 am

Rob–I don’t think I was as clear as I could have been. When I said contingent all the way down, I meant to suggest the possibility that society/community might not be at all. That is, not just that society/community might have turned out differently.

My reference to libertarians was a reference to the general libertarian insistence that the state has no rights other than the rights of the individuals on whose behalf it acts. The state is us, contractually bound, not organically bound. If the state can punish, it is not because the community has a right to defend itself (whether divinely ordained or otherwise), but because some individual was wronged and has the right to punish. And so on. That’s the view rejected by Thomas.


A Scott Crawford 12.17.04 at 6:31 am

Shouldn’t we distinguish between “Natural Law” and the codified laws of men? Locke, Hobbes, Spinoza, & etc. all make the distinction, and it’s misleading to claim Thomas is arguing “Divine Rights” rather than “Natural Law” when he uses ‘God’ (so perhaps he should just use ‘Providence’ in place of ‘God’!)

Spinoza’s Political Tract is worth considering before leaping to Unger.


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