During an afternoon tea break at a small conference in the Atlas Mountains of Morocco, my Muslim Berber colleagues and I managed to arrive at the thorny topic of women's roles in society. One of these colleagues posed the blunt question to me whether women and men were equal in American society. I answered that they were.
To this, one of these colleagues - Moha, a kind soul and friend of mine - responded that for Moroccans, and, indeed, for Muslims everywhere, it was simply not possible for women and men to share political or social equality, because the Qurʾan commands that women obey men.
I want to be clear that my friend's Quranic exegesis is really quite beside the point here; I am not especially interested in answering whether his reading of the Qurʾan is valid, much less correct. What matters for present purposes is that Moha believed, in good faith, that this was God's revealed law, and no human law or mores could justifiably override it - no matter how desirable those mores or laws. Divine law must, by its very nature, trump all other laws.
It is this very sort of scenario that has driven political theorists, philosophers, journalists, and Marxists of all stripes to point fingers at religion (or religious people) as irrational, even dangerous. But this criticism begs the question whether a given religion, as well as a person's interpretation of that religion, is ultimately true. If it is, then it is the most rational thing in the world to obey those commands, whether or not one agrees with or likes them. One hardly acts irrationally in opting to stay on an omnipotent god's good side. And while doing so perhaps does entail some danger to a social order that would rather keep the divine on the sidelines, again, if God exists, it is surely less dangerous to obey Him than to ignore Him.
The problem that Moha called attention to is a timeless one - or really, two timeless problems: first, the tension between the divine law (sharīʿa, in this case) and human law or norms; and secondly, the tension between Christianity and Islam.
There are many ways to deal with both of these tensions. As mentioned above, we could attempt to eliminate the tension between divine and human law by dismissing religion as irrational or outmoded. Alternatively, we could reject the human side of the problem - if God declared something in a holy book (or tradition), no matter how undesirable or uneasy that command, it is for us to conform, not the command. There are more moderate ways as well: one could historicize the text and downplay the tension, perhaps claiming that it was meant for a particular time and no longer applies or need not be taken seriously. We could hide revelation and tradition behind a Rawlsian veil of ignorance or make the Habermasian move of requiring that religiously motivated reasons offered in the public sphere must be "translated" into secular reasons.
There are grains of sense in almost all of these approaches. Nevertheless, each one runs into insuperable obstacles. Requiring translation, for instance, creates a de facto disadvantage for religious argumentation. Unquestioned conformity to revelation at any cost leads to fundamentalism; it can provide no principle for avoiding violence or other illiberal practices that undermine the very religious freedom that permits obedience to religious obligation in the first place. Historicization risks downplaying revelation to the point of neutering it. Something else is needed.
That something else, it seems to me, must be some version of natural law. Only natural law stands, as it were, between gods and men. It employs human tools of reason and observation, yet it admits of a divine creator behind nature - and therefore something inherently normative about naturally given ends. Without this intermediary, I cannot see how conflicts between divine law and human law can end in anything other than continuous antagonism - a struggle between "but the divine law says" and "but humans want."
The idea that natural law can mediate divine and human laws is perhaps as old as the idea of natural law itself. What is perhaps more debatable, though, is whether natural law discourse can help with the second tension mentioned above, between different religions. I'll explain why I think this could pose a difficulty in a moment. But prior to this question, we must also answer exactly what - or whose - conception of "natural law" could potentially enable such discourse.
For the sake of brevity, I'll cut straight to the chase: what we need is Robert Sokolowski's understanding of natural law. In a brilliant article entitled "What is Natural Law? Human Purposes and Natural Ends," Monsignor Sokolowski, citing Francis Slade, provided the pithy, if less than catchy, definition of natural law as the "ontological prioritization of ends over purposes." "Ends" are naturally given final causes, the that-for-which something exists, and "purposes" are those things we humans set out to do.
Sokolowski and Slade's natural law is mere natural law, a formal rather than substantive definition. It tells us how to derive rules or laws rather than what those rules or laws are.
This is distinct from, though not incompatible with, thicker understandings of natural law, such as David Novak's description of "those norms of human conduct that are universally valid and discernible by all rational persons" or Leo Strauss's "natural right," those principles of morality that are "discernible by reason and universally acknowledged." In my view, however, the idea of natural law as that which is universally acknowledged to be moral reaches both too far and not far enough. It goes too far because, when we begin natural law reasoning with the attempt to articulate universal moral principles, we often find such disagreement that the principles might as well not exist. Alternatively, they may exist but they are so basic as to prove uncontroversial and therefore useless. As Jacques Maritain commented about the Universal Declaration of Human Rights, "We agree about the rights, but on the condition that no one asks us why."
But in another sense, this understanding of natural law (or natural right) doesn't go far enough, for it does not give us an idea of how we might access those universal principles. It only asserts that those principles exist. Sokolowski's definition, on the other hand, gives us a path of discernment: we are first to ascertain the end, or telos, of a given entity. Then, we direct actions toward that end, universally for that entity.
Natural law, according to Aquinas, represents "the rational creature's participation in the eternal law." But divine law also participates in the eternal law; in fact, it is direct revelation of it. So, if two people - such as Moha and myself - recognize different divine laws (or none at all), won't these differences carry over into our respective perceptions of natural law?
Logically, I believe they should. Sokolowski's "mere natural law," as I am terming it, does not require full agreement on the content of natural law; it requires only that the interlocutors conceive of the world as having ends. And indeed, we do see this teleological orientation of the world present in various religions. It is well known within Christian thought, but teleological natural law finds expression outside Christianity as well. Maimonides, for instance, describes Jewish law as itself teleological: "The Law as a whole aims at two things: the welfare of the soul and the welfare of the body." The Law, that is, is for these ends, and no purposes have priority over them. This teleological nature of Jewish Law, as David Novak describes it, "saves revelation from being reduced to reason, and . . . saves the law from being reduced to divine caprice." Jewish law, because it is circumscribed by certain given ends, leaves room neither for fundamentalism nor a totalizing rationality denuded of metaphysics. It is indeed God's revealed will, but it exists for the welfare of the soul and of the body, and those ends must be prioritized.
For reasons outside of the scope of this article, natural law theory gained less of a foothold in Islamic legal theory as it developed in the Middle Ages than it did in Jewish and Christian thought. Still, natural law is not absent.
Averroës provided a starting point for an Islamic philosophy of law that incorporates natural law. In the twelfth century, he wrote of an "unwritten law of nature" that seems to function quite similarly to a Thomist natural law. It exists in harmony with divine law, it is accessible to all humans "by nature," in Averroës's words, and it gives rise to universal norms. Averroës, who was known simply as "the Commentator" because of his nearly exhaustive commentaries on Aristotle's works, reflected Aristotelian teleology in his writing, and this unwritten law of nature is no exception, for the unwritten law begins with the nature of things, not mere convention.
Averroës's legacy in the West is, I think, a bit unfair. His Latin commentators are (probably mistakenly) thought to have developed what became known as "two truths" doctrine, which suggests that two things that contradict each other may nevertheless be true in the same way at the same time. But such an interpretation ignores Averroës's own insistence on the harmony of faith and reason. Indeed, his "Decisive Treatise (Determining the Connection Between Law and Wisdom)," which was not known to his earlier followers, declared that as it concerned sharīʿa (divine law) and hikma (literally "wisdom," but used to refer to philosophy), "truth does not oppose truth; rather, it agrees with it and bears witness to it."
So it seems that there is a solid foundation for the natural law in at least these three religions, which together cover over half of the world's population. That's not a bad start.
The title of this essay alludes to the 2011 film Of Gods and Men, which recounts the true story of nine French Trappist monks living and working at a monastery in the village of Tibhirine - in the same range of the Atlas Mountains where Moha and I had tea. It is a remarkable film, and it certainly portends a great deal for religious pluralism, both in its possibilities and perils.
One of the most poignant features of the film is its portrayal of the harmonious life of these Christians and the surrounding Muslim community prior to the arrival of Islamist guerrillas during the Algerian civil war of the 1990s. Both the harmony of the pre-war days and the monks' eventual martyrdom occur because the brothers act with the ends of human beings as their priority - they continually ask what their work is for. One monk, for example, is a doctor who attempts to heal bodies, even when doing so is at cross-purposes with political and social pressures. The courageous Fr. Christian, when faced with threats to the safety of his monastic community, convenes the brothers to reflect on what their monastery is for, and whether the purpose of safety can override it.
I do not mean to suggest that this sort of reflection is easy or yields clear answers. Furthermore, both for the monks of Algeria and the tea talk of Morocco, it is not apparent that teleological natural law thinking could have overcome obstacles that may not, in the final analysis, be intellectual in nature. Still, it seems clear that without it we are stuck with conflict: conflict between gods and men, and conflicts between men fighting about their gods.
Natural law, then, may be our last best hope to mediate these conflicts and retain some measure of the moral universality that can unite humans with our rich religious particularities.