The Future of Theological Ethics: Response to Christopher Insole

These comments may not satisfy as a response to this important paper by Christopher Insole. He has shown much about the place of rationalist theology as a line of continuity between the pre-critical and critical Kant. What we have there is a focus on the theological side of theological ethics, but I am afraid that were I to take up Kant, it would be most of all on the question of ethics, and a decisively theological ethical view. Thus the questions that strike me as most challenging are not the questions about intellectualist theology—they would more likely lead to questions about rationalism in a genuinely medieval mood. There is much to be discussed in Insole’s paper. And some sorts of theologians are likely to regard this as the focus of the question about Kant, and even about comparative theology.

But my question is more about the status of law not as an expression of God’s essence, but rather as reflected in relation to morality and legality. Hence I might agree that the shape of the God that is argued for in the pre-critical works and then reduced from a demonstrable foundation for speculative reason in the critical theology (and then re-introduced through practical reason founded on morality and the transcendental reflection on morality) is not voluntaristic. But I propose to offer some insight into the stakes for ethics from the Jewish tradition by switching the axis of inquiry.

So having somewhat altered the terrain for the sake of the question about Kant’s role for other traditions, I would then insist that we take seriously the way that in the Religion and elsewhere, Kant’s thought is profoundly Protestant. Derrida reminds us that Kant had argued that Protestant Christianity was uniquely a moral religion, or at least bore within its historical faith the true rational moral religion. ¹ To those of us who are not scholars in the field of Protestant theology nor parishioners in the Protestant churches, this claim allows us to explore—from the outside—a logic that for want of a better word I would call transcendental reflection.

In general, I hold that there is nothing that is simply philosophy: it always comes with some kind of theological identifier: Catholic philosophy in the hands of Thomas Aquinas, or pagan in the hands of Aristotle or Plato, Jewish with Maimonides and with my own favorite, Franz Rosenzweig, Protestant with Kant, Locke, Hegel and Schelling, and many others, and then neo-Pagan with Heidegger and his followers, and lapsed-Protestant with so much of Anglo-analytic philosophy. Not that this is merely biographical; my point is much more about the metaphysics or the theology that helps configure the philosophical task. Nor do I hold that it is all merely theology then. Rather, philosophers think differently in each of these traditions from the theologians (who are probably as such Christian in some way), or from other sages and other sacred intellectual traditions. Philosophy, though inflected by its theological site, is a specific kind of abstraction and of reflection, that seeks a universality on the basis of both indigenous rational reflection and the call of an extraneous Greek-origin philosophical tradition.

Characteristic of this Protestant version is that the loss of an analogia entis means that our fallen experience is only of appearances and not of things themselves. The critical turn in epistemology reflects the limitations of our minds. But transcendental reflection can make this rigorous. Let me state this boldly: the goal of transcendental reflection is not merely to reveal the contingency of the world we know; it is rather to secure that contingency. And human freedom is also constructed with a similar rigorous contingency. The question of the structure of freedom, and whether God’s is the same shape as ours, is coordinated in Kant with this specific work of transcendental reflection.

But the question is whether this suits either Jewish, Islamic or any other theological framework. Let me mention, in passing, that Hermann Cohen engaged in a radical re-interpretation of this transcendental reflection, one that was a vigorous Jewish mode of reflection. Characteristic of his reflection are themes familiar to us such as denying the given-ness of the manifold (‘the myth of the given’), a pure ethical socialism, a denaturalisation of aesthetic experience, as well as specific recourse to Jewish sources to articulate a moral religion. However, at the core of this reflection (and of others who followed in his footsteps) are two linked criticisms, criticisms that should help us take the gauge of this lingua franca—which is a German Protestant language.

First and most primary: Kant’s metaphysics of morals is divided decisively between the Rechtslehre and the Tugendlehre. My colleague, Arthur Ripstein, has now written a substantial commentary on the Rechtslehre. ² We are ever more aware of how Kant’s account of freedom is not allergic to laws and legislation, any more than it is anti-religious. However, the division of the two parts is achieved on the basis of a familiar opposition of internal freedom from external freedom, and a restriction of the external laws merely to preventing harm or violation of others.

The result is that while there is a sense that ethics itself requires the moral law, and so is a positive relation to law, the realm of external freedom is limited to a rigid and all but punitive law. For Kant, legality is force without grace or generosity—it is law in its purely negative, limiting function. This separation of inner and outer morality excludes the place of a constructive and educative function of law. Coercion may be part of law, but it is not the essential attribute of it, and for Jewish ethics, legality partakes of a much greater generativity of ethical character. There remains the question whether the internal legal form is itself what determines the will—but in general the separation of law from ethics is dangerous for both. ³

There is a second criticism that is much more challenging, and I will only sketch it here. The modality of moral laws (both internal and external) is for Kant necessity. The result is that moral causality is based on mechanical theoretical causality, and this annuls the moral character of law. We might begin with a simple contrast between two modal verbs: müssen and sollen. While Kant seems to be giving preference to sollen, the account of necessitation of the will, and the general use of physical causality to explain moral causality lead to a notion where what must be is the deepest meaning of what should be. The consequences are the distribution of this mechanical causality as the essential feature of rationality wherever it goes. All laws seem to be structured around this necessity. Not only physical causality, but human moral agency, and from there to Divine causality. God, too, is binding and bound by necessity.

The key issue is to contrast this necessity with the true sollen, which acts as a norm. Norms are rational, but in a way that they generate duties of freedom, and so preserve the freedom of the agent. Laws are not, especially in practical philosophy, necessary and compelling, but rather they norm our action, and do not simply compel. ⁴ Just how to describe this space of normativity is beyond the brief comments here, but freedom requires something less than necessary causality.

I will then offer a final suggestion about theological ethics—it begins with practical reason among Jewish philosophers. For them the shape of normativity helps characterise the nature of laws. Legality and rationality are bound up with this moral duty that does not compel action. But from these insights into legality, Jewish philosophy moves on to moral theology—to an account of a God who redeems and educates us with laws and commands. In so far as any speculative theology concerning God’s essence and being is possible, Jewish philosophers will venture there only on the basis of moral theology. And thus Jewish philosophy, despite its reservations about Kant’s coercive limits on legality and reduction of normativity, welcomes the priority of practical philosophy, and the relocation of philosophical theology from theoretical to practical philosophy.