Ethics and the Moral Law, Part III: Paul and Psychoanalysis

In this final post, I want to explore a psychoanalytic interpretation of St. Paul, developing suggestions by Slavoj Žižek amongst others as to how Paul can be read in this fashion. One way to frame this approach is in terms of this question: what, if anything, constitutes the distinctiveness of moral norms? One answer to that question would be to say that they are individuated by being categorically binding on us, holding irrespective of our desires or projects. The way of taking Paul outlined here would warn against dangers attendant to this conception of moral norms which, in setting up an inflexible standard against which we are judged, leads to unproductive results: namely, a psychic economy ruled by the principle of guilt which encourages us to remain submerged in an unhealthy obsession with our own transgressions of law. As he is presented here, Paul seeks to retain the spirit of an engagement with law—the sanctity of the content of what the law demands—while avoiding the problematic effects of the unconditional injunctions that are imposed through the articulation of this spirit in law. To borrow a phrase from Hegel, his aim is thus taken to be “to strip laws of legality, of their legal form.”

All this raises the question of why, if law is so problematic, it arises in the first place. It is often claimed that moral norms have a special role in regulating our relationship with others. A framework of moral norms introduces a common reference point to allow for planning and co-ordination of actions, especially amongst strangers, as well as supporting valuable behaviour such as reciprocity. Insofar as these norms are articulated in laws—whose formal properties introduce universality and unconditionality to them—then this adds a further measure of stability, increasing the degree and predictability of responsiveness to them. Žižek’s explanation of the origin of law takes this to be important, though not for simple prudential reasons, but rather because it helps erase the traumatic contingency present in the actions of others:

the advent of Law entails a kind of ‘disalienation’: in so far as the Other itself appears submitted to the ‘absolute condition’ of Law, the subject is no more at the mercy of the Other’s whim, its desire is no more totally alienated in the Other’s desire … it opens our access to desire by enabling us to disengage ourselves from the rule of the Other’s whim.

So, the specific problem of negotiating our relation to others calls for a system of law that makes obedience unconditional, seeking to dissociate compliance from our whims. Yet this creates a new problem, for the nature of the injunctions imposed is superegoic. As Jodi Dean explains this aspect of law:

This traumatic, senseless injunction is also the psychoanalytic notion of the superego. Superego issues unconditional commands, telling us what to do, refusing to take no for an answer, refusing even to consider our specific circumstances, needs, or desires.

Here we find a description that seems to be of a piece with morality as construed categorically.

A misconception that it would be easy to arrive at would be to suppose that, insofar as we accept there is a superegoic dimension to law—some oppressive moment within it such that we are brutalised by an insistent challenge to fulfil a set of absolute demands—then Paul’s problem with law would be that it leads to such a stark and demanding task for us. However, matters are more complex given the superego’s equally important ties to enjoyment which arise in two ways. Firstly, the absolute injunctions of the superego are not just occasions for guilt, for there can be a perverse satisfaction in the very act of renouncing one’s ‘official’ desires. Examples of this narcissistic attachment to asceticism abound, from the stereotype of the old Irish woman who is prepared to go to preposterous lengths to accommodate the smallest desires of her guests, to the Nazis described by Arendt who got a kick out of committing acts they genuinely considered to be disgusting and unspeakable but were carried out all in the name of the greater good of the Fatherland. Secondly, one of the injunctions of the superego is itself ‘Enjoy!’, such that we can find ourselves feeling guilty and inadequate if we do not squeeze every drop of satisfaction out of our leisure time, if our social calendar is not brimming over with enticing engagements, and so on. Thus, the superego stands in a complex relation that ties together both guilt and enjoyment. So, on the one hand we have the public moral law whose presuppositions are that although we may find enjoyment in transgressing the law, we will feel guilty if we do. However, the peculiar logic of the superego means that our attitude to the public law is accompanied by an ‘obscene’ underside such that we can equally find enjoyment in renouncing our desires and not transgressing the law, and so too we can feel guilty if we do not follow through on our desires and fail to break the law.

Along these lines, the problem for Paul might then be construed not simply as the fact that we are averse to the weighty impositions of the law but rather that we are simultaneously too attached to them in other respects. Not only does law prohibit sin, it orders our psychic life around what is forbidden—sin becomes a structure for organising one’s enjoyment, which given the haywire network of relations between duty, transgressions of the law, guilt and enjoyment, makes the sinful at once abhorrent and desirable. The way to escape this problem would be to find a way of carrying out the task of the law, which is to manage interpersonal relations, while suppressing the ‘obscene’ underside to law.

Žižek’s suggestion as to what Paul’s solution to this problem is picks up on Paul’s opposition of the law to love. We are to be reconciled to our neighbour by loving them as themselves. Žižek opposes other modes of reconciliation to this model, most notably any approach that tries to bridge the gap between me and others based on the rights of the other. As Dean puts it:

The symbolic neighbour is the abstract subject of rights. Here my respect is ultimately my respect for law, my sense of duty to the law. And this of course reconnects me to my complex relationship to law, my enjoyment of law as well as the enjoyment I get from transgressing it.

Paul’s solution is supposed to be a recommendation to embrace one’s neighbour in their very giveness—including their strangeness, unintelligibility, wickedness, and so on—and not as an abstract subject whose place is delineated by law.

Given that we now begin to relate to our neighbour outside of the framework of law, does this mean that we can simply transgress the law? Perhaps the best way of taking Paul here would be as saying that by radically refusing to interact at a disengaged level, willing only to do one’s duty, to contribute no more than what is due, our relations with people are no longer appropriately measured by the yardstick of law. No doubt we will end up conforming to what the law would have required of us if we fully embrace the maxim of love for one’s neighbour. However, the mode of engagement with the world that made talk of law intelligible will have been superseded—it will be ill-fitting and, moreover, even judging oneself at all by the old standard of law, even if not cleaving to it, risks rehabilitating an unhealthy relation to the notion of sinfulness.

Ethics and the Moral Law, Part II: Saint Paul

This is the second post on law and its place within ethics. Here I examine St. Paul’s thoughts on these matters. I should add that I am not too familiar with many of the details of Paul, so please look kindly on any errors or omissions.

The context of Paul’s writing

Although Paul has been subject to political and philosophical appropriation, we ought to keep in mind the religious context of his extant writings. His letters are written to fledgling Christian communities, variously intended to counsel, cajole and console their immediate readers on religious affairs and matters of communal conduct that are entwined with these. They are not primarily theoretical treatises but rather practical interventions undergirded by an implicit framework threaded through Paul’s thought that must often be inferred by piecing together the apparent presuppositions of disparate sections of text. This means that in trying to discern a relatively consistent Pauline position we are often confronted with ambiguities to resolve as to the scope of what Paul says—whether and how far it is intended to carry beyond the particularities of the specific context that surrounds it, and if his thought remains viable when so extended. I shall mention two of these ambiguities that we should take into account.

Firstly, we are concerned with Paul’s thought on law, but given the religious context there are two sets of possibilities to consider as to what ‘law’ amounts to and whether its meaning remains consistent throughout. One way of taking Paul is as questioning the Abrahamic law of the Jews, one tied to them in their particularised status as the people of the covenant, and thus a law that is not truly universal. Alternatively, it may be the very form of law in general that Paul is questioning, whether truly universal or not. So too, we might take whatever law it is in question as being a narrowly religious matter, important insofar as it affects our relationship with the divine. Or instead, we might conceive the law as pertinent in its relationship to a richer ethical conception of the good of which the divine may be an integral component but not of exclusive importance, being supplemented by the value deriving from a properly ordered relationship towards ourselves and others. This also leads us to the second question as to the scope of Paul’s thought. That is, how far it is dependent upon his soteriological concerns, which for us becomes the following question: do viable philosophical positions remain when we subtract Paul’s conviction that Jesus is the Son of God? Both these issues—over the meaning of ‘law’ and the centrality of soteriology—I merely wish to flag here as something that we should recall throughout. Given the particular approaches to Paul considered here, the assumption will be that (unless otherwise stated) the law in question is universal and of relevance to wider ethical matters. The soteriological elements of Paul’s thought will be touched upon in the following section.

Pauline biblical scholarship and the Law

Modern biblical scholarship on the question of Paul’s attitude towards law can be divided into two main camps. Each finds Paul to have a different problem with the law (either Judaic or universal). We can briefly characterise them as follows. Until the late nineteen-seventies, a Lutheran perspective on Paul’s treatment of law was orthodox. It takes Paul’s problem with law to be its tendency to encourage an attitude that overemphasises works to the detriment of faith: the notion that salvation is primarily a matter of external practice rather than our subjective comportment towards the divine and the mercy of God. The so-called ‘New Perspective on Paul’ has challenged this diagnosis of Paul’s criticism of law, claiming instead that the problem with law is, as it is often put, simply that it is not Christ. This Christological interpretation of Paul is variously finessed by commentators, but a common core is constituted by the idea that the law has been fulfilled, in the sense of supplanted, by the resurrection—this event making the law redundant, or at least marginal. Here, I shall concentrate on the first approach outlined.

What I have called broadly ‘Lutheran’ interpretations give a central place to the idea that a fixation on law will give rise to a misplaced works-righteousness. There are several ways of taking this criticism of law.

Firstly, we may think that it proclaims a simple doctrinal error that is liable to lead the Christian astray. The problem with conceiving law as integral to salvation would be that it attributes duties as a condition of being saved, whereas a Lutheran protestant will affirm that the Christian is ‘justified by faith alone’. This is not a problem with law per se, only its relation to salvation. For it is quite consistent to suppose that we are subject to the authority of law (whether particularised or universal) and even that this is a good thing, only that our soteriological standing swings freely of matters of law—even religiously sourced laws—being secured by our faith alone. Thus, it seems that not much light is thrown on the role of law from these considerations. A second way of taking the criticism that law encourages a misplaced works-righteousness is to suppose that there is a contrast being drawn between the righteousness secured by our doing the work mandated by law and the righteousness to be found in God. The problem with law identified here would be that it nurtures a prideful attitude that focuses upon one’s personal achievement in carrying out the demands of the law. For if salvation is conceived primarily as a matter of our relation to the dictates of law, of meeting a fixed criterion, then we could be thought to be insufficiently humble inasmuch as we are led to conceptualise it as product of human labour rather than bestowed by God—something that disregards the gift of God’s grace. Again, as a freestanding critique of the role of law then this is not hugely enlightening.

However, if we probe a little deeper into the assumptions behind these positions we can make some progress. For we can ask why it is that the Lutheran thinks that we can only be justified by faith alone and that confidence in law would be misplaced and sinful in its pride. What lies behind both these positions is a fundamental pessimism about humanity’s capacity to do good and thus somehow earn their salvation instead of being dependent on divine dispensation. Our only hope is justification by faith since we cannot achieve it on our own, and from this it also follows that trusting in human dutifulness to the law as a means of salvation is a vain overestimation of our own powers. Of particular philosophical interest here is the belief that it is not so much man’s appetitive weakness that is to blame—that we will inevitably transgress the law through our susceptibility to the temptations of sin—but rather that it is our reason that is deficient. What we are incapable of doing is determining what the law requires, our post-lapsarian state leaving us with an insufficient capacity to work out the ends proper to man, the law that we are subject to in connection with these ends and the correct application of this law in concretio, without the intervention of God’s grace at every step.

One way of extracting a philosophical lesson from this purportedly Pauline insistence upon fide sola is to notice its implications for the relation between the right and the good. We can frame this matter through the claim that the view of Paul presented is an anti-constructivist one. Constructivist accounts of a discourse (say, ethics or science, etc.) take the truth-value of the propositions that compose it to be a function of correctly following a certain procedure in reasoning to these propositions; there is no anterior fact of the matter divorced from the procedure. For example, a scientific constructivist might explicate the truth of a physical theory by saying that all it means to say that the theory is true is that the scientific method was correctly followed in formulating it, where this method would be constituted by a set of rules pertaining to standards for the collection of data, allowable inferences from this data, coherence with other well-established theories, and so on. Note the relation this establishes between the ends of a constructive procedure and the principles that make up this procedure. Ordinarily, we take norms for action to be answerable to our goals—what recommends following a certain procedure is that allows us to achieve some end that is of prior value; indeed, we appraise such norms based on their success in this respect. Those who are constructivist with respect to a certain domain reverse this relationship in that they take potentially correct ends to be delimited by a set of authoritative principles governing action. In other words, they privilege the right (that mandated by some set of rules governing obligations and permissions) over the good (the proper ends of ourselves or our practices); in conjunction with ‘materials of construction’ (what the constructive procedure is applied to), the former will determine the latter. 

Paul might be taken to be criticising views that give such a primacy to the right on two counts. In warning us about giving too much weight to law, alongside a pessimistic view of human reason (which it must be said is hard to discern in Paul’s text without independent Lutheran assumptions), Paul’s criticism of works-righteousness could be construed along the following lines. If it is following the law that secures salvation (where we might substitute the achievement of ethical good for salvation), then we must be able to grasp this law and apply it correctly in concretio for it is only by correctly following the procedure set out by the norms encoded in the law that we are able to secure salvation. However, since human reason is deficient in its ability to correctly understand and apply the law on its own, we must rely on the grace of God if we are to carry out the work of the law. So, even if at an explanatory level we suppose that the right (in the form of the law) determines the good (in the form of the meritorious works that secure our salvation) it would be wrong to take up an attitude of righteousness with respect to works of law-following. This is because at the level of practical action we cannot achieve the right—we cannot first follow the procedure correctly–-if we do not have the faith that makes us receptive to grace which allows us to enact the law. Thus, it will always be an error to fixate on the law, for without humbly turning away from the question of our own righteousness, of our place as measured against the criterion of the law, in order to stand in God’s righteousness (a move away from being concerned with our own value and toward a faithful conviction in God’s) we are unable to grasp the law at all. An initial disregard for the law thus becomes a condition of following it at all.

If we try to translate this into a more secular critique though, we face some problems. For example, why should we accept scepticism about the power of reason if we can no longer in good faith indulge in the jouissance provided by self-abasing Protestant stories about the post-lapsarian feebleness of humanity? Perhaps if, in a Humean fashion, we thought that the legitimate role of reason was merely instrumental, not itself setting ends but merely devising means. Given such a model, we might share the suspicion over our ability to successfully reason about the law, for we might think that reason had no substantive role to play in discovering or directing our proper ends. Thus, taken simply by itself, reasoning about the principles embodied in the law would have no claim to be able to determine what we ought to do. As independently unattractive as such a conception of reason is anyway, the Lutheran-Pauline position is even more sceptical about the powers of reason than this though. For the proponent of a merely instrumental reason would accept that we could adopt the principles of the law for some further reason (a desire to please God, say, not simply reasoning to them for their own sake). Yet, the Lutheran- Pauline position would maintain that we could not even follow the law in this instance, since their scepticism extends to our ability to ascertain the correct application of the law, utilising it even when we have decided that it is fitting for us to adopt it. It is hard to motivate such a pessimistic conception of reason when divorced from a religious setting.

Perhaps we can make something of the warning about an excessive fixation on law though. For although we can read the Lutheran-Pauline position as being one that announces our utter dependence upon the mercy of God, that human effort is insufficient to achieve salvation, we can also see it as containing a lesson about the subjective attitude that we should take towards law. So instead of seeing our ability to correctly follow the norms embodied in law as dependent on the de facto dispensation of grace from God, we might see the structure of our attitude towards God as the real achievement that allows us to correctly follow the law. The idea here would be that in privileging faith over law we can discern a schema that can be applied outside a narrowly religious context. For we can understand Paul’s talk of faith (pistis) as the hopeful waiting upon grace (kharis), but take this to be a placeholder for the wider need for a certain openness—receptivity—to something beyond the law. We are still dealing here with a supplemental approach to the law, one that denies that we can just follow the law by straightforwardly understanding its dictates, but the locus for this necessary supplement to law would no longer have to be a divine one.

A secularised way of taking Paul along these lines could develop the thought that salvation cannot simply be earned by the mechanical adoption of some procedure derived from law. We might think that a narrow concern with meeting the letter of the law will miss its true purpose, ignoring what it is that animates it and makes it valuable at all (whether this be God or the achievement of human good). Thus, we risk tacitly treating law as itself constitutive of the good, as an end in itself, rather than an instrument to achieve our true ends. This is not an epistemic matter of, as it were, simply recalling in the abstract that the law serves a purpose beyond itself. Rather, if the law is to function as an instrument, we should attend to both its final purpose and what it is instrumentally applied to. Conceived as an instrument for achieving ethical good rather than salvation, in the schema previously outlined we can substitute an openness to grace (to direction by God) for an openness to secular factors which can guide our application of the law in concretio. As in the religious case, this will supplement the necessarily relatively ‘thin’ directives of the law with a ‘thicker’ method that can help guide us in what to do in actual practice.

One suggestion as for a secular factor able to play this role, substituting for pistis in Paul, would be enculturation—the habituation into a social tradition that allows us to recognise certain reasons as compelling. This would be a more intelligible variety of influence on our ability to apply the law, rather than being a mysterious openness to grace so as to receive a measure of God’s ‘maker’s knowledge’ of the law, it would reflect an attunement to the social ground that provides the context in which the function of the law, in enabling us to achieve certain goods, becomes intelligible. In this way, by supplementing a tight focus on the letter of the law alone—one that sees only a list of demands divorced from their rationale—with the resources required to reach a richer understanding of the tasks animating it, it should be possible to apply the law more adeptly.

Ethics and the Moral Law, Part I: Anscombe

Larval Subjects has a good post up on deontological ethics. I am sympathetic to some of his antinomian sentiments, though I often find myself drifting back and forth between Aristotle and Kant in ethics (being the good Hegelian that I am). I’ve written a little bit about law-conceptions of ethics and their critics, and thought this would be a timely opportunity to post some of the results. This first post will deal with Elizabeth Anscombe and the second will move onto Saint Paul. Readers interested in this topic might also want to have a look at this previous post on Hegel and laws or this one on Anscombe and MacIntyre.

Modern Moral Philosophy

At the centre of Anscombe’s attack on modern moral philosophy, set out in her classic paper of the same name, is the concept of moral obligation. Part of the reason that her treatment of this concept is of interest is that she is sensitive to the historical grounds of its employment, noting the context in which it arose and became a fundamental notion for modern moral thought in an attempt to show that only under certain conditions–ones that are no longer widely believed to hold–is it coherent to speak of an emphatically moral obligatoriness.

Here I want to question the historical narrative that Anscombe presents us with, arguing that it may be problematic on two counts. These potential difficulties will be explored with reference to the religious elements of her account, where the divine law is invoked as the only viable way of construing moral obligation. The second of the worries I shall highlight is that she overlooks the diversity of thought within what she calls the “Hebraic-Christian ethic.” For Anscombe is too hasty insofar as she tacitly ascribes a relative unity to Christian thought in supposing that such thought should be seen as going hand in hand with the view that morality is seen as originating in divine law. But before addressing this point, another objection to her historical narrative will be considered-one that promises to be more threatening to her positive project-which claims that, even within the tradition of those who have believed morality to stem from divine law, Anscombe mischaracterises the way this has been conceived. Firstly though, some of the relevant main features of Anscombe’s strategy will be outlined briefly.

Anscombe’s strategy

Anscombe’s paper opens with a statement of three theses, the second of which will concern us here:

the concepts of obligation, and duty-moral obligation and moral duty, that is to say-and of what is morally right and wrong, and of the moral sense of ‘ought’, ought to be jettisoned if this is psychologically possible; because they are survivals, or derivatives of survivals, from an earlier conception of ethics which no longer generally survives, and are only harmful without it.

Here we see the historical dimension to Anscombe’s thought: emphatic moral concepts once made sense given the context of an earlier ethics, but without such a context they no longer do, becoming confused and out of joint to the extent that our use of them is actually harmful. The context that the emphatically moral sense of ‘ought’ arose from, and in which it is thought to have its natural home, is that of a law conception of ethics. Thus, ‘ought’ gained a moral sense in certain circumstances that was synonymous with the sort of requirement or obligation that one could be said to be subject to through coming under the authority of a law. Anscombe claims that it acquired such a special sense (that is, one in addition to the sense of ‘ought’ in which to say that a machine ought to be oiled means that it is liable to break otherwise) through the enormous influence of Christianity. For it had a law conception of ethics that understood what it is to be ‘bad qua human’ to be a failure connected with falling short of a divine law.

Given this diagnosis, it is not immediate apparent what Anscombe’s strategy is. As is suggested by the quote above and by other sections of her paper, it might simply be to drop talk of the moral ‘ought’ altogether, reverting to what Williams calls ‘thick’ moral concepts, such as justice or honesty. This rejection of the moral ‘ought’ would be premised upon the unsustainability of the law conceptions of ethics without which it loses its meaning. Anscombe certainly is disparaging of modern attempts to rehabilitate the notion of an ethics of law, like certain understandings of Kantian self-legislation. Yet Anscombe was herself a Christian who held to the divine law, so where does that leave her position? It seems that it should be read as an attack on the incoherence of those who employ emphatic moral concepts yet themselves lack an adequate law conception of ethics that would make these concepts intelligible. For her then, a law conception of ethics is not untenable in itself, but only insofar as it is divorced from the support of a religious framework. The crucial phrase in her second thesis comes when she says that emphatic moral concepts ought to be jettisoned because they are derived from “an earlier conception of ethics which no longer generally survives.” Recognising the de facto decline of a religious moral culture in favour of a secular one, Anscombe would be warning against importing concepts that only make sense in the first tradition into the latter climate where, without the necessary framework guiding their use, then they are bound to become mangled and perverted, as she thinks happened in the post-Sedgwick English tradition. So, whilst herself holding onto a Catholicised Thomism that combines law and virtue, she would be recommending a non-divinised virtue ethics for those unwilling to embrace a religious ethics.

Obligation and law

Having now outlined some aspects of Anscombe’s argumentative strategy, the first potentially problematic feature of Anscombe’s position that I want to consider stems from her treatment of the concept of law. In doing so, I want to pick up on the unease that has been expressed to a greater or lesser extent in different places with respect to the details of how she seems to understand this concept, its relations to those such as commandment and its place in the Christian tradition. One way to begin to articulate concern with Anscombe’s position in this respect would be to focus on her idea that emphatic moral concepts have lost their roots: their connection to a tradition that both illuminates them and endows the moral ‘ought’ with a meaning over and above what she calls that of “a word of mere mesmeric force.” For Anscombe’s suggestion as to how they lost their grounding, through the loss of their connection to the religious framework of divine legislation, highlights a potentially problematic understanding of what moral obligatoriness amounts to. This is one that both can appear independently unattractive and also at best marginal within the very Christian tradition that it is meant to be representative of.

Thomas Pink claims: “For a virtuous action not only to be virtuous, but actually to be morally obligatory, in Anscombe’s view, just is for that action to be commanded of us by a moral law-giver.” If this is what it means to be morally obligatory, then continuing to talk in terms of this emphatic moral obligation in the absence of the inferentially constitutive concepts of God, divine authority, commands that are promulgated to us, and so on, is liable to lead to some confusion. It is certainly something along these lines that Anscombe is getting at when she says, “It is as if the notion ‘criminal’ were to remain when criminal law and criminal courts had been abolished and forgotten.” Yet, is this what moral obligation means, either now or even at the height of theories of divine law in the late Middle Ages? Here we might question two aspects of the definition of moral obligation. Firstly, we can ask a question implicit in Pink’s work, is moral obligation reducible to the dictates of the divine law? Secondly, as Onora O’Neill hesitantly wonders in connection to Anscombe, is divine law here actually understood as divine command?

There clearly is a Christian tradition that locates the source of moral obligation in God and whose proponents are often referred to as ‘divine command theorists.’ Yet, this does not mean that for them moral obligation simply is divine command or legislation–that the former is semantically or explanatorily inexplicable without reference to the second. We can quite consistently suppose that all moral obligation has its source in God’s dictates while explaining what moral obligation is, or taking it as primitive, in a way that makes it independent of the divine. This is to say that the concept of moral obligation can be distinct from the concept of what is divinely dictated, even if moral obligation happens to arise through divine command or legislation. For it may be that coming to be morally obligated to do something requires certain conditions to be fulfilled–whether that is being commanded to do so by God, being the action that maximises utility, etc.–yet the moral obligatoriness does not have to be identified with its cause; the moral obligation is the normative claim upon us, and this we do not have to identify with the authoritative structures that generate this claim on us. This line of thought cautions against the potential category error of simply equating an object or event (e.g. God commanding you to do x) with the normative power it gives rise to (e.g. the moral obligation to x), for even if it is the former that give rise to the latter this does not mean that the latter are no more than the former. Thus, it may seem that Anscombe would have to do more to bridge the gap between moral obligation and divine dictates if she is to show that moral obligation becomes incoherent when removed from a religious framework, with it lacking some sort of independent basis.

The second question raised asks about Anscombe’s understanding of law. She often uses ‘law’ and ‘command’ in a seemingly interchangeable way, but does this accompany a deeper conflation of the concepts of law and command? O’Neill expresses the suspicion that Anscombe actually thought in terms of divine command when claiming to be discussing divine legislation, ignoring the crucial formal differences between laws and commands, instead treating divine law as fiat. But what is characteristic of laws is their universality, something O’Neill expresses by saying that they “prescribe for all cases within their scope.” We might think of this in Kantian terms, as no doubt O’Neill is predisposed to, whereby this universality characteristic of law is important insofar as its moral function is to confront the temptation to make an exception in one’s own case. Transfigured into a religious dimension this might become an insistence on law so as to oppose something like the following thought, ‘Ordinarily doing this would be wrong, but God has special plans for me that require me to do it.’

Evidence that O’Neill points to so as to demonstrate this lack of awareness of the distinct formal structure of laws is Anscombe’s focus upon the source of law, this being her only objection to those who advance law conceptions of ethics without a divine element. To expand upon O’Neill’s hints, perhaps a good example of this is Anscombe’s brutally swift dismal of Kantian self-legislation:

Kant introduces the idea of ‘legislating for oneself’, which is as absurd as if in these days, when majority votes command great respect, one were to call each reflective decision a man made a vote resulting in a majority, which as a matter of proportion is overwhelming, for it is always 1-0. The concept of legislation requires superior power in the legislator.

Yet this rather misses the point, for with respect to the notion of self-legislation the emphasis is very much on the legislation rather than the role of the self (O’Neill may demur at this point). What is important here is not the misleading picture of the agent that somehow binds or outvotes itself, but rather the fact that the agent is following maxims with the formal structure of laws, stripped of all partiality. In following these rationalised maxims, ones where no unjustifiable exceptions are made simply because it is I who is acting, we act in a way proper to being whose nature is itself infused with rationality, with the laws thus no longer being alien impositions: this is the self-legislative component.

Anscombe shows little sensitivity to the formal universality of laws, here or elsewhere. Her focus is upon the source of law, which she thinks must be divine if it is to be sufficiently authoritative, appears indifferent to the fact it is law under discussion at all. This seems to prevent her from appreciating some of attractions of the key alternative law conceptions of ethics that are relatively independent of a divine legalism. So, given that Anscombe thinks that emphatic moral concepts only make sense when allied to a law conception of ethics, of a legalistic sense of right and wrong, then it may seem little wonder that she is eager to recommend rejecting talk of the emphatic moral ‘ought’ for those who wish to adhere to a secular ethics. Yet, as we have seen, even the divine command tradition itself, not to mention other strains of Christian thought, does not seem to provide her with unambiguous support. This is because the implications of Anscombe’s second thesis may seem to require that the emphatic moral concepts are prone to be deployed incoherently outside of a divine command conception of ethics because all there is to moral obligation is to be divinely commanded, whereas it seems we could employ an independent notion of moral obligation, as someone like Suarez purportedly does. Arguably, this is not a decisive objection though insofar as we may think that even with some understanding of what moral obligation would amount to outside of the explanatory framework of a divine law conception of ethics, there would be still be systematic pressures disposing us to incoherent moral judgements insofar as we would still be unable to make sense of the source of moral obligation since secular ethics will not appeal to God as legislator and will require some as yet unproven stand-in. In this situation, we may be best advised to explore the aretaic alternatives like Anscombe suggest.

St. Paul and Hegel

Here, in this section I want to pick up on what it is a surprising omission from Anscombe’s account given her Christian convictions, even given the polemical style of her paper. This is that there is next to no consideration of anti-legalistic conceptions of ethics from those within the Christian tradition. Her references to ‘Hebraic-Christian’ thought occlude not just minor cosmetic differences amongst religious thinkers about the relation between law, morality and the divine but also radical disagreements over the relation of these three notions. Here, I shall briefly point to two such thinkers, Saint Paul and Hegel–hardly insignificant figures.

Paul had good reason to confront a law conception of ethics inasmuch as it was a pressing political issue within the early Church. The evangelising that Paul dedicated his attention to was faced with a pressing practical problem, one that required Paul to devise a theoretical, but no less concrete, solution. (Here we can see why Paul’s reputation amongst Marxists as the Lenin of Christianity is well deserved!) The problem concerned the issue of whether new initiates into the Church should be required to hold to the Abrahamic law; a matter that crystallised over whether they ought to be circumcised or not. Paul was torn between placating Jewish Christians who were predominantly in favour of a hardline adherence to the Jewish law and the Gentile Christians who were not eager to adopt a strange new set of legalistic injunctions.

It can be tempting to read this debate as one with a narrow relevance, of a dispute over the merely particularised traditional law of the Jews and so of little relevance to our concerns, those of the moral law in general. However, this would be a mistake. This is because Paul stresses throughout his letters that what is at stake in this conflict is Christian identity as such, that in Christ there is neither Jew nor Gentile. Condensed in this opposition is not the particular ethnicised law of the Jews against its rejection; rather, it is the opposition between particular law and the universal ‘cosmic’ law. In rejecting the disjunction of Jew or Gentile, in saying neither/nor, Paul thus rejects law in general. Or rather, he asserts the priority of love over law, which it is tempting to read as akin to an assertion of the priority of the good over the right. Paralleling this subsumption of law under love is one that similarly subsumes duty under grace (kharis): one is not redeemed by works, one cannot ‘earn one’s due’ that way. So, rather than the divine acting as a source of legislation as in Anscombe, Paul thus marginalises any legalistic obligatoriness more forcefully than she does. Although all this is articulated in a religious mode, Paul is rather paradoxically in many ways a stridently secular thinker; at least, he has been easily appropriated by some materialists in this spirit. For obvious reasons though, he is not a central figure in moral philosophy, despite his relevance to issues such as the law conception of ethics and although much of his thought is deep and tacitly argumentative enough to merit it.

Finally then, we can go on to consider Hegel as another anti-legalistic thinker who remains in the Christian tradition, but again whose opposition to a law conception of ethics is somewhat different than Anscombe’s critique. The Philosophy of Right does have a place for moral laws within the structures of Sittlichkeit, though arguably in a muted and secondary role. Here though, I shall maintain the religious theme by considering Hegel’s early theological writings, which attack law conceptions of ethics in an even more polemical fashion than Anscombe.

Of particular relevance here is the extended, unpublished essay, ‘The Spirit of Christianity and Its Fate.’ This represents Hegel’s first extended reckoning with Kant and in which the latter’s legalism along with his formalism is indicted. The hero of the tale, who Hegel often opposes to Kant, is Jesus. This is a Jesus who is a radically anti-legalistic figure, as can be seen from a representative passage:

The spirit of Jesus, a spirit raised above morality, is visible, directly attacking laws, in the Sermon on the Mount, which is an attempt, elaborated in numerous examples, to strip laws of legality, of their legal form.

The morality that Jesus is said to be above here is, of course, Kantian Moralität; and the problem with this morality is ineluctably entwined with its articulation in laws to which we are obligated. More fully, this problem is the split that Hegel sees it as nurturing within the subject between reason and inclination, divisively setting two aspects of the subject into conflict.

Hegel’s solution is, unsurprisingly, a complex one but as with Paul there is no straightforward rejection of law. Rather, in a deeply Pauline fashion, Hegel appeals to the fulfilment (πλήρωμα) of law through love: one that, so to speak, suspends its letter in the name of its spirit. The full details would take us too far afield, so all I wish to note are the deep affinities between these two Christian-centric critiques of law conceptions of the ethical. This makes it all the more strange that Hegel never explicitly mentions Paul. Nevertheless, my closing suggestion is that they might be profitably read together against Anscombe as anti-legalistic thinkers who take this opposition to law to be at the very essence of the Christian tradition and not a melancholy necessity imposed by its decline.