Rendering to Caesar and God: St Paul,the Natural Law Tradition,and the Authority of Law

1 Paul and the Internal Law: The Law of Sin and Death

French philosopher Alain Badiou, in his work on St Paul leading up to his exposition of Paul’s famous passage on the internal function of the law in Romans 7, contends that Paul’s fundamental thesis is that the law gives autonomy and life to the desire of the subject, which is attained in the form of a transgression. The subject as such is constrained by the law to transgress the law, inevitably leading to death. ⁷ Importantly, sin is not desire, but rather the “life of desire as autonomy” – in other words, desire itself has an automatic life. Law assigns this subjective desire to a particular negative prohibition, resulting in the transgression of that prohibition and therefore the subject occupying the site of death. ⁸ Badiou subsequently proceeds to analyze Romans 7, continuing to argue that desire realizes itself as sin through the prohibition of the law, and this de-centering of the subject from desire leads the subject to cross over to death. ⁹ Thus, for Badiou, Paul’s immutable conclusion is that in order to resolve this problem, the subject must break from the law in order to escape death, and the event that causes this break or rupture is Christ’s resurrection. ¹⁰

Slavoj Žižek also identifies this relationship between law, desire and subject, labeling it ‘‘perverse’’ insofar as the law itself generates the desire in the subject to violate it. ¹¹ The dialectic identified by Paul between law and transgression implies that the institution of the law is itself the greatest transgression, and in fact the law is required in order to sustain the transgression. ¹² Thus, for Žižek, the subject is trapped in a vicious cycle where the prohibition instituted by the law is a sufficient condition for its transgression by virtue of the desire created in the subject. ¹³ In relation to his analysis of Badiou as a reader of Paul, both agree that the fundamental problem of the law for Paul is how to break out of the vicious cycle between law, desire and transgression – the perversion where the law generates its own transgression and its presence is necessary to sustain the transgression. ¹⁴ However, they differ in relation to the event or mechanism by which this break from the law occurs. As mentioned above, for Badiou the event is Christ’s resurrection, the point where the law of death loses power. ¹⁵ The public proclamation of Christ’s resurrection provides the possibility for life. ¹⁶ However, for Žižek, according to Paul the entire point of Christianity is to break out from this vicious cycle of law and transgression via the law of love. ¹⁷ It is the institution of the principle of loving your neighbor as yourself that guarantees the break from death, rather than the resurrection-event providing the possibility of a break from death in Badiou’s formulation.

However, the distinction is not as superficially sharp as it initially appears. Badiou also notes the ostensibly contradictory statements by Paul that ‘‘Christ is the end of the law’’ and ‘‘love fulfills the law,’’ and proceeds to argue that Paul reconciles these by his summing up of the entire law in the maxim ‘‘you shall love your neighbor as yourself.’’ ¹⁸ As a single, affirmative statement, this maxim does not arouse the desire to transgress through the presence of multiple prohibitions, and therefore it satisfies the requirement of love fulfilling the break from the vicious cycle of law, desire and transgression. ¹⁹ Badiou connects this with the event of Christ’s resurrection by noting the requirement that the maxim is subjectivated by faith, and faith is required since before the resurrection no subject has any reason to love themselves. ²⁰ For Badiou, faith is not mere private conviction, but a public declaration of the truth-event, which in this case is the resurrection. It is this public declaration or subjectivation that provides the possibility of life for the subject, but it is only through love that this faith can actually work. ²¹ Thus, similar to Žižek, Badiou argues that the ‘‘love your neighbor’’ principle successfully breaks from the law of death as a ‘‘law’’ of love, providing a sufficient condition for the subject’s life by allowing the working of faith, the public declaration of Christ’s resurrection.

Both Badiou and Žižek note a significant consequence of adopting the ‘‘love your neighbor’’ principle to break out of the law of death. Žižek contends that the desire is no longer that of transgressing the law of prohibition, but that of fidelity to desire itself (now expressed in the form of the duty to love one’s neighbor as yourself) which elevates the duty to an ethical one that binds in conscience – to ‘‘Do your duty!’’ ²² Similarly, Badiou states that the new faith is comprised of releasing self-love in the direction of others in a way made possible only by internal subjectivation or conviction. ²³ This internal conviction takes the form of an inner voice, some transcendental authority which internally compels the subject to obedience. ²⁴ Douzinas observes that this new form of self-subjection, uniquely added by Christianity, is a willing submission by the subject, implying the subject is therefore bound in conscience to obey the ‘‘self-legislation.’’ ²⁵

It is here that Žižek explicates his concept of ‘‘unplugging,’’ which he uses to connect the internal Pauline ethic of doing the duty of ‘‘loving one’s neighbor as yourself’’ to a notion of the authority of the external law, or the law instituted by the civil authorities. The divine dimension of the external law has its being in the Ethical, and it is this externality (symbolic integration) which constrains internal obedience. ²⁶ This ‘‘unplugging,’’ or disengaging oneself from the idleness that constrains the subject to identify with the hegemonic social order or Symbolic (read: civil law), is not a merely inner contemplative stance, but an active work of love which leads to an alternative community – a community whose fidelity is primarily to God, and obedience to the external civil law is secondary. ²⁷ However, since it is the external civil law where the divine interaction transpires, obedience to the external civil law (the established Symbolic) is paradoxically rendered necessary for this alternative community. Hence, subsequent to his exposition of the law and sin and the solution of love, we find Paul commanding the new alternative community of Christians to be subject to the civil authorities: the law of love and fidelity to God necessitates it. ²⁸ Thus, the civil law should be obeyed as a function of adhering to the duty to love your neighbor as yourself, the ultimate fulfilling of and breaking out of the cycle of law, desire and transgression created by the law of death.

The analysis above demonstrates that law’s authority does not stem from an infinite number of negative prohibitions. Paul comprehensively demonstrates this structure to inevitably result in transgression rather than obedience. As such, mere prohibition does not produce an obligation to obey – indeed, it could be said that it produces an obligation to disobey as the prohibition itself generates the desire to transgress it. In this sense, law’s authority is empty, for by its nature it cannot produce obedience in the subject. Paul’s alternative formulation to reinvigorate the authority of law is that of a single, transcendental positive axiom appropriated by faith in the resurrection: namely, to love your neighbor as yourself. ²⁹ The transcendental aspect of the axiom is vital for Paul, as it is the inner transcendental voice corresponding to the axiom which compels the subject to obedience. The implications of this new perspective will be explored more fully in the final part.

For now, these existentialist readings of Paul by the likes of Badiou and Žižek beg important questions of consistency regarding the broader interpretation of Paul’s thought on the law, and so this article turns to consider the contentions of an important vein of contemporary Pauline scholarship in this area, or what is known as the ‘‘new perspective on Paul.’’ E.P. Sanders, J.D.G Dunn and N.T. Wright are the primary authors generally associated with this so-called ‘‘new perspective,’’ and so these require special attention. ³⁰ The movement, coined by Dunn, argues that Paul has traditionally been interpreted in an anachronistic Reformed context, and thus this traditional perspective has misunderstood the role of the law in Jewish soteriology. ³¹ According to Dunn, for Paul the role of the law was to identify and maintain Israel’s privileged and separate status as compared to other nations. Dunn argues that Paul attacks this role of the law by contending that in Christ, Jew and Gentile are united by faith, and hence the function of the law is obsolete. ³² Wright agrees that Paul’s polemic against the law in Galatians is a polemic against the Jewish law which is the national charter of the Jewish race, the Torah. This law is one stage in God’s plan, and that stage is now complete, and will make way for a new stage, which is Christ and the law of the Spirit. ³³ He contends that the law refers to particular actions by the Jewish covenant community which distinguished them from other nations. ³⁴

In particular, Dunn argues that what Paul means by the law is specifically the Jewish Torah, or works of the covenant between God and the Jews, such as circumcision. ³⁵ Hence, people are not justified by the law in terms of performing the covenant works, but are instead justified on the basis of faith in Christ. Indeed, in Christ, the covenant is fulfilled and broadened not just to Jews, but to all people, and this is given by the new way of the Spirit. So the distinctively Jewish character of works of the law should not be relied on or continued, for this is to ignore the central fact that God’s covenant purpose for all people is that they should be justified by faith in Christ and live by the Spirit and not by the law, with the law being fulfilled in Christ. ³⁶

Importantly, Dunn cites Sanders as one of the major inspirations and pioneers of the new perspective, and seeks to clarify, strengthen and extend the perspective opened by Sanders. ³⁷ According to Sanders, one of Paul’s main arguments in Galatians in relation to the law is that Gentile Christians are not required to keep the Jewish Torah in order to be considered part of the Christian community. Nor, in fact, are the Jewish Christians – but they may if they wish. Hence, Paul’s central focus is on Christian relations between Jew and Gentile in regard to the Jewish law, and his primary objection to mandating adherence to the law for Christian believers is because the law brings a curse and righteousness or obedience/law’s authority must be by faith, excluding the law. ³⁸

In the final analysis then, though God is responsible for giving the law, it was never his plan for the law to produce righteousness. Instead, the law curses and leads to transgression, and righteousness is by faith for both Jews and Gentiles. ³⁹ Fundamentally, Sanders argues, Paul’s problem with the law is that it does not provide for God’s ultimate purpose, which is salvation for all through faith in Christ. ⁴⁰ As such, Paul connected the law inextricably with sin and saw it as a negative component of God’s plan of salvation, despite the fact God provided it. This constraining and enslaving force of the law lasted until the coming of faith and was given for the purpose of leading to faith. The law was given by God for the purpose of condemning all and preparing for the redemption provided by faith. ⁴¹

2 Paul and the External Law: God, Civil Authority and Sanction

Although we have seen how the readings by Badiou and Žižek connect Paul’s discussion of the law of sin earlier in Romans to his discussion of obedience to the civil law in Romans 13, one may be apt to wonder if the new perspective on Paul, with its focus on Jewish Torah and covenant, allows such a connection to be made. According to Sanders, when Paul says that the law kills, he means all the law – Sanders notes that Paul appears to make no distinction between the ritual law and the moral law. ⁴² The law of God is the whole law, given by God and connected with sin. ⁴³ One could presume that this also includes the civil law, both that of the Jews in the Torah, and that of the Gentiles which Romans 13 discusses. In all cases, the law of love fulfills the law, both civil and ceremonial, Jew and Gentile – or so the argument may go.

In fact, Sanders goes further, and explicitly connects fulfilling the Torah through the law of love with fulfilling the Roman civil law through the law of love, not making any distinction between the function of the two. ⁴⁴ This implies that in Paul’s mind and the Jewish context, the question of the authority of law could not be divided with reference to the type of law considered. ⁴⁵ Paul’s contention is that the law should be fulfilled, including ceremonial, moral and civil law, and the method of fulfilling it is by the law of love. Consequently, such admonitions by Paul in regard to the civil law are remarkably in accord with the Torah and Jewish tradition. ⁴⁶ Sanders even goes so far as to state that:

Since the point is not controversial … Rom. 13:8–10 makes no obvious distinction between the law that Christians should obey and the Mosaic law. There Paul not only quotes Lev. 19:18, but also itemizes four of the Ten Commandments and adds “and any other commandment” as being included in Lev. 19:18. ⁴⁷

It is therefore not inconsistent with Paul’s Jewish content and heritage to apply his discussion of the Torah in Romans 3–8 to his discussion of the civil law in Romans 13:1–10. Indeed, the general view in Judaism is that God ordained all parts of the law, and rejecting any of the law was tantamount to rejecting God himself. ⁴⁸

This argument may be further strengthened by considering how Paul uses the law of love as the foundation for obeying the civil law in Romans 13, just as he uses the law of love as the foundation for obeying or fulfilling the Torah. Firstly, Paul explains in verses 8–10 that love fulfills the law because it does no wrong to a neighbor. If one loves their neighbor, they will not murder them or steal from them and so forth according to the commandments of the Torah, and therefore love fulfills the law. In verses seven and eight, he explicitly provides the foundation for obedience to the civil law by stating that one should render to all what is owed to them, particularly taxes, revenue, respect and honor. This is specifically addressing the issue of paying taxes to the civil authorities (who make and enforce the civil laws), and so the argument is that since the civil authorities will fulfill the law by ensuring it is obeyed, according to verse eight we should obey the law as a function of love by giving the civil authorities the taxes they are owed, which then fulfills the law. Thus, the fulfilling (which refers to obedience) of the law has its basis in the law of love.

Secondly, the law of love is implicitly invoked in verse two, where obedience of the civil law is premised on the fact that the civil law is ultimately instituted by God, so that disobeying the civil law is equivalent to disobeying God. Since the law of love includes obeying God as a function of that love, Paul is essentially saying that when one is fulfilling or obeying the civil law, they are effectively loving God by being obedient to him. Hence, the law of love fulfills the civil law. Finally, the law of love is the contextual precondition of obedience to the civil authorities in the passage immediately preceding Romans 13:1–10. In Romans 12:17–21, Paul states that one should not repay evil for evil, but overcome evil with good, doing good to one’s enemies and loving them. This is the essence of the law of love, and its most extreme application – in the context of the law of love, Christ in Luke 10:25–37 explains in the Parable of the Good Samaritan that one’s neighbor can be even their most bitter enemy. Thus, to avenge one’s enemy is contrary to the law of love, and so Paul implies that instead of taking personal revenge, one should be subject to the civil authorities. Since the law of love is Paul’s argument for not taking personal revenge, it follows that the law of love is the foundation for the fulfilling of the civil law in Romans 13. Therefore, the law of love not only transforms and redeems the Old Testament law, but also provides the foundation for the authority of and obedience to the civil law.

To reiterate, Paul first identifies the problem of the law of sin, and how the prohibitions contained in the law generate and sustain the transgression of the law, inevitably leading to death. His solution to this problem is the axiom to ‘‘love your neighbor as yourself,’’ which fulfills the requirements of the law and gives it authority without creating the desire to transgress it through the existence of prohibitions. Paul subsequently proceeds to explain how this law of love not only compels internal obedience, but also external obedience – obedience to the civil authorities. It is on this basis that we proceed to specifically consider Paul’s statements regarding obedience to the civil authorities in Romans 13:1–7.

Superficially, Paul’s position and argument in this passage seems straightforward and unequivocal. In verse one, he states that all persons should be subject to the civil authorities because they receive their power from God and have been instituted by God. So those who resist the authorities resist God and incur his wrath in the form of punishment by the authorities. ⁴⁹ However, submission should not merely be for the sake of avoiding punishment, but also because of conscience, for obedience and honor are due to the civil authorities by virtue of their position. ⁵⁰ In conjunction with this being consistent with the reading provided by the new perspective on Paul above, this was the stance of prominent Reformed theologians Martin Luther and John Calvin. Luther, basing his contentions on the principle of loving your neighbor as yourself as established in the previous part, states that Christians should readily submit themselves to be governed by ‘‘the Sword’’ (or by sanction) as an act of loving one’s neighbor, and furthermore Christians should submit themselves to the governing authorities as they are good by virtue of the fact God has instituted them. ⁵¹ Calvin agrees, and argues that both the civil authorities and the punishments they give are directly from God Himself, and should therefore be adhered to. ⁵²

Others assert that Paul is being more subtle in this passage, to the extent that he is communicating an ambivalent or even contradictory message to the explicitly stated one. For example, Taubes states that Romans 13 is solely pragmatic, and is a result of Paul’s apocalyptic nihilism which simultaneously avoids overt civil disobedience while refusing to grant legitimacy to the governing authorities. ⁵³ Carter reads the passage ironically, viewing Paul’s surface meaning as an ironic subversion of the authorities it appears to commend. ⁵⁴ However, these readings are difficult to sustain, even upon deeper textual, contextual and lexical examinations of the passage. In addition to the arguments given above from the Jewish and Reformed perspectives, Coleman analyzes the passage in relation to significant Greek words, and argues that obedience to the civil authorities is an issue of morality rather than politics, since the authorities are God’s servants and thus Christians have binding tangible obligations (taxes and tributes) and intangible obligations (reverence and honor) they must render to the civil authorities. ⁵⁵ This does not imply a disjunct between the authority of law and obedience to it, but instead affirms that the authority of law stems from a moral obligation to obey it. Furthermore, Paul’s additional exhortations to pray for civil authorities and to be good citizens imply that an ironic or ambivalent intention on the part of Paul in Romans 13:1–7 is highly implausible. ⁵⁶ Thus, Paul is essentially arguing that people should be subject to the civil authorities because these are established by God and to avoid punishment from God in the form of punishment by the authorities, and for the sake of conscience.

3 Paul’s Triad for the Authority of Law

From what has been previously established, Paul’s argument for the authority of the civil law in Romans 13:1–7 has three components and proceeds as follows: firstly, all people should be subject to the civil authorities because they have received their power from God and have been instituted by him. From the existential readings of Badiou and Žižek, this divine dimension of the external law has its being in the Ethical, and therefore is intrinsically connected with the conviction of conscience to do one’s duty described below, where fidelity to God requires obedience to the civil law. From Reformed and Jewish readings of Paul, all law, both civil and Torah, has been given and instituted by God, and to disobey this law is in effect to disobey God as the one who has instituted it. Secondly, the authorities have been given the power to punish those who disobey them as a function of their authority from God, implying that they are manifesting God’s wrath against the one who breaks the law by punishing that person. The Reformed and Jewish readings of Paul particularly emphasize this aspect, but from slightly different perspectives. The Reformed (or ‘‘old’’) perspective emphasizes the sovereignty of God as dispensing punishment for disobedience to laws or civil authorities he has instituted, while the Jewish perspective focuses on punishment being meted out by the community for such disobedience. ⁵⁷ Nevertheless, for our purposes it seems apparent that the perspectives agree on the central fact that according to Paul, the law should be obeyed since God has delegated authority to the civil society for the purpose of punishing those who disobey the law.

Finally, persons should not be subject to the civil authorities merely to avoid God’s wrath in the form of civil sanction, but also for the sake of conscience, because to disobey the law of the land is to disobey God himself as the one who has instituted them. The issue of conscience, though very much emphasized in the readings of Badiou and Žižek as central in the obedience to and authority of the divine law, is less clear in Paul’s Jewish context. In Romans 2:14–15, Paul discusses a kind of natural law that enables those without the law (the Gentiles) to do the acts required by the law through the law written on their hearts, or through their conscience. However, this is specifically for those without the law or Torah, and would therefore appear not to be applicable in the Jewish context of obedience to the civil law. This insight is critical, for it allows what is in fact a limitation of the law under the old covenant to be exposed. In contrast to this, under the new covenant, the law is written on the hearts of all people, both Jew and Gentile, and this law is the law of love or the Spirit, which fulfills the Torah and brings God’s complete plan of redemption to fruition. ⁵⁸ Hence, according to the new covenant articulated by Paul, and in contrast to the Jewish Torah, both Jew and Gentile will obey the civil law as a function of conscience, governed by the law of love instituted by God.

For Paul, these three factors should result in the citizen rendering the civil authorities what is due to them: taxes, tributes, reverence and honor. ⁵⁹ It follows from this triad that the authority of law ultimately stems from a divine obligation to obey it. This is not incompatible with the notion of a single transcendental positive axiom being authoritative as described above, but rather Paul justifies the triad with the principle to love one’s neighbor in the verses that immediately follow. Hence, it is the law of love which produces obedience and therefore reinstates law’s authority – through its divine institution which convicts in conscience, as well as through divine punishment delegated to the community or state. This line of reasoning also complements the new perspective emphasis on Paul’s Jewish context, for his discussion of law as alternating between Torah and Roman civil law can be consistently understood due to their essential equivalence, in conjunction with the fact that both are governed and fulfilled by the law of love. Consequently, in the next part, each component of Paul’s argument, justified by the law of love, will be explored in the context of their connection with themes found in traditional natural law and positivism, hence providing an alternative perspective for further investigation into the authority of law.

1 The ‘‘Divine’’ Civil Law

The first horn of the Pauline triad, that the civil law should be obeyed by virtue of its divine institution, will be explored in relation to traditional themes of natural law in this section. The most significant writer in traditional approaches to natural law was the medieval theologian Thomas Aquinas, who identified four types of law: eternal law, divine law, natural law and human or positive law. ⁶⁰ For Aquinas, the human or positive law is derived directly from the speculations of human reason guided by the natural law inherent in humanity, which is in turn a participation in the eternal law of God, insofar as human reason has been illuminated by the divine law. ⁶¹ Consequently, the human law must necessarily conform to the natural law in order for it to fully constitute a law that invokes a binding moral obligation to obey it. ⁶² Aquinas also acknowledges that the law makes use of fear of punishment in order to ensure obedience. ⁶³ Despite this, if the human law does not conform to the natural law, it lacks the requisite moral force to oblige obedience. It is from this notion that Aquinas contends that an ‘‘unjust law’’ (a human law that does not accord with natural law which is part of the law of God) does not require obedience. ⁶⁴ Thus, the authority of human law for Aquinas is that it prescribes a standard of virtue and good principles based on natural law (ultimately, the eternal law), and it is this that should be obeyed, rather than obedience to the institution of law itself. ⁶⁵

This brief summary of the Thomist framework for law belies the extent of contemporary disputation over what precisely Aquinas meant in articulating this framework. To plunge into the depths of this discourse is beyond the scope of this article, but it is hoped that by briefly outlining a genealogy of Aquinas’ thought, followed by consideration of some of the different perspectives, we may arrive at a reasonably plausible foundation for understanding Thomist jurisprudence in the context of the Pauline triad proposed above. To begin, Aquinas quotes Augustine as an authority for stating that there exists an eternal law, which is supreme reason and unchangeable. Similarly, Aquinas argues on the basis of Augustine that there is a distinction between the eternal law and the temporal law, which is called human law. Humans may access the eternal law through reason, which is sharing in the eternal reason, and this participation is the natural law from which may stem human or positive law. Hence, following Augustine the eternal law is imprinted in us by God through nature. ⁶⁶

Aquinas also argues that human laws which adhere to the natural law do bind in conscience through being part of the eternal law of God. However, those which do not adhere to the natural law fail to bind in conscience, and so are not really laws. He cites Augustine’s statement that “a law that is not just seems to be no law at all” in order to justify his further contention that the force of a law depends on its justice, or whether it is from God. ⁶⁷ Aquinas, further using Augustine, argues that the new law is unwritten, and on the human heart. This is the law of faith and of the Spirit. ⁶⁸ This new law is also the law of love, which contains the old law and fulfills it. ⁶⁹ Ultimately then, according to Aquinas and following Augustine, the laws of the secular state have their justification and authority from the fact that they are part of the eternal and natural law of love – or, in other words, that they are given by God. ⁷⁰

Given Aquinas’ apparently heavy reliance on Augustine, it is worthwhile considering Augustine’s own framework for natural law. He contends that in order to live in peace, a person subordinates their primal tendencies to the rational soul. However, divine direction is required to know what to do, and divine assistance is required to obey. Hence a person requires faith, in order to view obedience and consequent peace in the context of the everlasting law, and to be in subjection to this law for the good of the society. The basis for this is two precepts taught by God – to love God, and to love one’s neighbor as themselves. If one follows these, it will result in obedience to the law of society and peace in that society. ⁷¹

From the Roman jurist Cicero particularly, Augustine adopted the Stoic notion of natural law and the eternal law (or, as he terms it, ‘‘everlasting law’’) as the supreme moral norm, and the sublime rational orderliness which characterizes the universe and is instituted by God – in other words, the divine wisdom is the universal law. Augustine distinguishes between the human or temporal law and this eternal law, which is the supreme immutable reason and must always be obeyed. Hence, the eternal law is the ultimate norm or standard for the eternal law. ⁷² This theistic (in contrast to the Stoic) definition of the natural law became the basic concept and authoritative pronouncement of law for medieval jurisprudence, and was most notably adopted and extended by Thomas Aquinas. ⁷³ The eternal law manifests itself in the eternal reason of all created reason, and so humans are governed by and are aware of this eternal law through the eternal reason. This participation of the rational person in the eternal law by the law of reason is the natural law, and even the person who does not acknowledge God may nevertheless appropriate the eternal law through rational participation. ⁷⁴ The primary content and principle of the natural law for Augustine, and later for Aquinas, is the so-called Golden Rule to do nothing unto another that you would not do unto yourself. ⁷⁵

Focusing on Cicero particularly as a major influence for Augustine, and therefore by extension for Aquinas, the natural law is the law of a harmonious Stoic universe which could be objectively perceived and is reflected in human nature. Brooks notes that this view of natural law has been explicitly adopted by the likes of Aquinas, as well as John Finnis. ⁷⁶ This law is eternal and rational, immutable and supreme, part of the divine reason and from God. Those who do not observe it are rebellious against their own nature and will suffer penalties. ⁷⁷ In the context of this article as proposing that Paul’s thought yields the triad described above, it is pertinent that Crowe observes a plausible influence for Paul in the Stoic philosophy of the natural law. In fact, the early church fathers such as Augustine seemed quite satisfied to view Paul as articulating a theory of natural law similar to that of Cicero. This natural law was of course put into a Christian framework, and the law of love (essentially seen as equivalent to the ‘‘Golden Rule’’) especially was viewed as epitomizing the essence of the natural law. ⁷⁸

Indeed, Aquinas himself uses Paul’s statements in Romans 2:14–15, that the Gentiles do by nature what is commanded in the law since it is written on their hearts and guided by their conscience, as his foundation for articulating the natural law, and argues that Paul is here using law in two senses. The first is the Jewish Torah, and the second is the natural moral law, written on the hearts of all people. The statement by Paul emphasizes two fundamental aspects of natural law appropriated by Aquinas: its foundation upon nature and its immediacy to human conscience. It is also universal in the sense that it is appropriated by all humans. ⁷⁹ Hence, even without revelation and in a fallen state, human reason is able to frame general principles of right action as a matter of practical reason, as opposed to the speculative reason of ontology. ⁸⁰ Aquinas also quotes the Apostle Paul in Romans 13 as support for his contention that all human law is from God, so that those who disobey the law in effect disobey God, and so are bound in conscience. ⁸¹

Therefore, as far as a brief, purely historical analysis goes, Aquinas’ thought and genealogy in regard to natural law and the authority of law appear to be consistent with the triad identified above in Paul’s thought – indeed, Aquinas quotes Paul on several occasions in order to justify his contentions that the law is divinely instituted and that it convicts in conscience. Both Paul and Aquinas appear to be significantly influenced by Cicero, particularly as they agree with Cicero on the issue of punishment or the suffering of penalties if the law is not obeyed, implying the authority of law as a matter of its being part of the eternal reason. Most importantly, there seems to be a common understanding that the content of the law and its justification is contained in the law of love, to love one’s neighbor as oneself or to do unto others as you would have them do unto you. Cicero, operating in the pre-Christian era, obviously does not explicitly articulate this principle, but agrees that the natural law is the “supreme moral norm,” which Augustine and Aquinas, following Paul, elaborate to be the law of love.

However, the question remains as to whether contemporary perspectives regarding Aquinas are equally consistent with this historical construal and the proposed Pauline triad, especially in the context of the discussion in relation to Hans Kelsen and Immanuel Kant (as articulating a more positivist or secular jurisprudence) later in this article. These perspectives are many and varied, but it is hoped that a brief sample will suffice in order to establish the argument that Aquinas, Kelsen and Kant can be consistently understood as individual theoretical components of the proposed Pauline triad. For example, Stanley Hauerwas as an interpreter of Aquinas avoids using the phrase natural law since it is often misconceived, misunderstood, and ambiguously adopted by its various proponents. Instead, he argues for the adoption of a Christian morality through the language of virtue, which is able to form Christian character and produce legally beneficial action, or obedience to the law. ⁸² Aquinas did not discuss natural law to supply an objective account of ‘‘natural’’ morality, but because he needed a principle to assist him in interpreting the various precepts found in Scripture. His treatise on law was in the specific context of developing an account of human activity as formed by virtue. ⁸³ Indeed, Aquinas views the human use of reason, which allows universal participation in the eternal law, as itself a virtue, and as a function of being a virtuous person or person of good character. ⁸⁴

It is certainly indisputable that Aquinas frames much of his discussion of natural law in terms of virtue. Indeed, as mentioned above, the authority of human law for Aquinas is that it prescribes a standard of virtue and good principles based on natural law. However, without wishing to engage in an extended debate regarding Thomist semantics, it seems equally clear from the above that for Aquinas, this virtue and its resulting obedience to civil law is based on the authority of the natural law, such that the two cannot be easily divorced. Hence, at least for the purpose of this article, one can happily agree with Hauerwas without it materially affecting the interpretation of Aquinas, except for the sake of employing the phrase ‘‘natural law.’’

The more substantive problematic appears to be located in the question of just how ‘‘theological’’ the Thomist account really is, and to what extent faith is required to appropriate it. On one side of the dispute, John Milbank argues that the natural law of Thomas Aquinas is intrinsically theological and transcendent, in contrast with the secular modern law in its being positivistic and immanent. ⁸⁵ For Milbank, medieval modes of governance avoided the danger of biopolitics, since the resort to unlegislated power was seen as necessary in those instances where the written law no longer served justice. In other words, following the model of Aquinas, appeal was made to a natural law of equity rooted in an eternal, divine law, and so provides an escape from biopolitics to some degree. ⁸⁶ Milbank concludes that the only final way out of the biopolitical conundrum is through authentic Pauline theology, which allegedly provides the theological framework for Thomist natural law. ⁸⁷

Milbank’s framework for understanding reality, and consequently for interpreting Aquinas, is that accounts of human life, law and nature must be integrally theological, and this entails the rejection of any recognition of the secular or a ‘‘pure nature.’’ The problem for Milbank’s view is that according to him, authentic knowledge comes from faith alone, but this is by no means a judgment shared by Aquinas. ⁸⁸ Indeed, quite contrary to Milbank’s contentions, Aquinas appears to allow secular participation in the natural law and the eternal law through human reason. This eternal law is objectively available and able to be apprehended by all who rationally participate. Moreover, Aquinas’ intellectual genealogy of Augustine and Cicero regarding natural law advocate this notion of ‘‘pure nature’’ which can be perceived by human reason apart from revelation, so that all people can participate in the natural law. Even Paul, by referring to the ‘‘natural law’’ of the Gentiles in Romans 2, emphasizes the way in which all people, those with or without faith, can universally and immediately access the natural law. Therefore, Milbank’s position on this issue would appear to stretch Aquinas a little too far.

On the other side of the spectrum is John Finnis, who claims that Aquinas considers the natural law to be self-evident, but that the existence of God is not self-evident, and that his will cannot be discovered without revelation. Hence Finnis articulates a theory of natural law without needing to revert to questions of God’s existence and will. ⁸⁹ Finnis states that according to Aquinas, a positive or human law is derived from the natural law by a deductive process, and obtains its force from the natural law, which Finnis defines as the set of principles of practical reasonableness which order human life and community. ⁹⁰ From a historical perspective, Finnis also alludes to the fact that Cicero, Augustine and Aquinas all espouse a principle similar to ‘‘an unjust law is not law.’’ ⁹¹ Finnis further discusses the origin of the phrase ‘‘natural law’’ in Cicero and the Stoics, emphasizing that a primary use of natura refers to practical reason according to human nature. ⁹² Hence for Finnis, according to Aquinas, even though the eternal law is from God, human apprehension of the eternal law by the natural law is through human reason. ⁹³

In Finnis’ favor, this account agrees with Aquinas’ intellectual genealogy of Augustine and Cicero, and is also more compatible with the positivist account of the authority of law contained in Kelsen, which is argued in this article to be part of Paul’s triad for the authority of law in Romans 13. However, Weinreb and Porter reject such an interpretation of Aquinas, for according to them Finnis claims that the Thomist natural law theory is not ontological, and is severable from Aquinas’ context of the eternal law of God. This is to radically distort the Thomist framework, and to misconceive the fact that the natural law exists on the basis of the eternal law and eternal reason rationally ordering the universe – in other words, for Weinreb and Porter, Finnis’ account of natural law in Aquinas is not theological enough. ⁹⁴

Jean Porter in particular seeks a more balanced approach than either Milbank or Finnis, arguing that the usual approaches to natural law, and particularly to Aquinas, are too focused on philosophy to the neglect of theology, the scholastics, and Scripture. To redress this balance, she seeks to articulate a theological account of the natural law through the accounts of the scholastics (and especially Aquinas), in order to properly incorporate Scripture, as well as provide a bridge to other perspectives. ⁹⁵ In this aspect, Porter’s approach has much to commend it, and this article could well be seen as a similar type of approach, in the sense that it includes Scripture and is generous toward the scholastics, yet acknowledges the non-theological elements of natural law theory, providing a bridge between perspectives. Indeed, this is the precise argument of the article in terms of what Paul appears to do in Romans.

In saying this, it is Finnis who nevertheless appears to provide the best understanding of Thomist natural law in the context of Paul’s triad for the authority of law. The criticism that Finnis’ account is not theological enough is actually the strength which enables it to be the most appropriate framework for considering Aquinas as part of Paul’s triad for the authority of law, insofar as this triad contains both (theological) natural law and positivist elements. Moreover, at least for the purposes of this article, the account provided by Finnis is manifestly theological without being theological in the totalizing sense espoused by Milbank. For example, according to Finnis, the term ‘‘natural’’ law and the consequent distinction between ‘‘natural’’ reason and revelation drawn by some theologians has given credence to the supposition that the term ‘‘natural’’ signifies immanence and secularism at the expense of transcendence or the supernatural. ⁹⁶ However, Finnis rejects such a supposition as “muddled,” arguing that what Plato, Aristotle and others mean by nature actually implies participation in the divine intellect and divine reason, entailing faith in the existence of God (however one conceives God to be). Hence, the assertion of objective norms of human flourishing and principles of human reasonableness lead to the affirmation of some transcendent source of these, which the philosophers term ‘‘God.’’ ⁹⁷ Hence, reason is something God-given, and practical reasonableness entails the imitation of God. Moreover, the basic values grasped by practical reason gain an objectivity, constancy, and impartiality reinforced by faith in God. ⁹⁸

Therefore, the Thomist argument for the authority of law has numerous parallels with the Pauline argument stated above. Most fundamentally, both agree that the authority of the civil (or positive/human) law is derived from its divine institution. For Aquinas, this was apprehended universally either through knowledge of the divine law (specific revelation from God) or by the natural law (human reason), which could never conflict since they are subsets of the eternal law of God. Thus, the civil law obliges obedience since it ultimately derives its authority from God. ⁹⁹ Similarly for Paul, as he states in Romans 13, the civil authorities should be obeyed as a function of rendering obedience to God.

However, one area where Paul and Aquinas disagree (at least superficially) is the issue of civil disobedience. For Aquinas, in the event that a human law does not accord with God’s law, it is not a law in essence and therefore one is not obliged to obey it. ¹⁰⁰ However, Paul in Romans is silent on the issue of civil disobedience. He simply states that the civil authorities must be obeyed. The only sign of a limit to this seemingly ubiquitous authority of the civil government is in Romans 13:7, where Paul says to pay to all what is owed to them. It could be argued that this allows Paul to say that if obedience is not owed to the civil authorities, it is not necessary to render obedience to them.

In fact, Paul does something similar in the subsequent verse, though in an esoterically paradoxical way. After commanding the Romans to pay to all what is owed, he immediately says to not owe anything except love, which fulfills the law. Hence, the command to owe obedience is simultaneously negated and fulfilled by love. ¹⁰¹ It is important to note that Paul is not advocating universal civil disobedience – the effective abolition of the civil authorities. Rather, as discussed above in relation to the internal law, it is not a series of negative commands and prohibitions that will result in obedience to the external law, but a single transcendental (divine) positive principle: to love one’s neighbor. This accords with the Thomist position specifically held by Hauerwas that the authority of law prescribes a standard of virtue (the law of love) based on natural law, rather than obedience to law itself.

In short, it is through love that the civil authorities should be obeyed, for that is what is owed to them and fellow citizens. Paul therefore allows the possibility that the civil authorities may be disobeyed if it is contrary to love to obey them. ¹⁰² Thus, the transcendental and divinely instituted principle of the law of love provides a justification for obeying the civil authorities, and the possibility of disobeying them if their laws are contrary to the law of love. Nevertheless, contrary to Aquinas, human laws that are against the law of love (or the eternal law) are still valid laws. In this way, the divinely instituted Pauline law of love transcends the mere command to obey the authorities (but necessarily achieves the same result) while simultaneously upholding the divine prerogative to punish those who disobey the authorities, even if they are unjust.

In the final analysis, in accordance with Paul’s triad for the authority of law in Romans 13, Thomist natural law can be theologically understood in terms of being from God and instituted by God, with punishment from God through the civil authorities for disobedience. Yet this law may be appropriated universally and has positivistic and immanent elements so that it can stand in a consistent relation with the particular articulations of Kant in terms of conscience and Kelsen in terms of the law of love as the basic norm. Most importantly, as explained above, such a natural law theory is consistent with a new perspective interpretation of Paul in Romans, so that Paul can be plausibly adopted as providing a unique approach to considering the authority of law.

2 The Law of Love as the Basic Norm

This part will examine the second horn of the Pauline triad for the authority of the civil law more specifically in relation to Hans Kelsen’s positivism. Similarities can be seen between the positivistic concept of the Grundnorm (or basic norm) proposed by Hans Kelsen, and the Pauline axiom to ‘‘love your neighbor as yourself.’’ For Kelsen, the idea of the basic norm is a presupposed, fundamental norm that authorizes and founds any coherent and valid legal system. It gives meaning to a legal system and bestows the legal power to create such a system. ¹⁰³ Kelsen himself notes that the law of love is an example of the basic norm, illustrating that the neighbor principle contains content from which other norms can be logically deduced, resulting in the establishment of an entire system of valid norms. ¹⁰⁴

Paul firstly demonstrates in Romans 7 that a legal system lacking the basic norm has a privation of authority, and is therefore doomed to fail. An endless array of invalid negative prohibitions creates the desire in the subject to transgress, rather than compelling them to obey. The Torah was such a system, a structure that existed as a set of norms without authorization or authority, and therefore did not possess an inherent obligation to obey. Furthermore, as explained in the new perspective, the Torah was never designed to bring salvation, but instead to bring a curse as a preparation for the law of faith. Consequently, as the solution, Paul invigorated the law and created a foundation for it by posing the law of love. As a single affirmative principle, it is the typical paradigm of the basic norm.

The most powerful example of this is found in Romans 13:8–10. In this passage immediately following Paul’s injunction to render obedience to the civil authorities, he clarifies this by stating that this should be achieved by loving one another, for love fulfills the law. He proceeds to show that the commandments (negative prohibitions) are all summed up by the law of love: to love your neighbor as yourself. Thus, as explained above, Paul is arguing that in addition to the reasons given in Romans 13:1–7, the civil authorities should be obeyed as a function of the law of love. However, his argument goes even further than this, tacitly asserting that the law of love is presupposed and fundamental – it precedes even the commandments. Paul demonstrates this by quoting the law of love from the Torah. ¹⁰⁵ As such, he shows that it is not a Pauline or even Christological innovation, but is the basis and fulfillment of the Mosaic Law.

Furthermore, the law of love legitimizes and validates the commandment system in conjunction with the civil authorities, for Paul uses it to justify his instruction to obey them by stating that this law of love fulfills obedience. It is the law of love that vindicates and gives meaning to the civil authorities and the series of commandments by ultimately transcending and fulfilling them. Paul also demonstrates that the law of love provides the content from which an entire system of valid norms can be logically deduced. In Romans 13:10, he states that love does no wrong to a neighbor. In this way, all the commandments such as not to murder and steal and the like are contained by this principle, since if you love your neighbor according to Paul you will not murder them or steal from them. Therefore, the axiom to love your neighbor as yourself provides the content of ‘‘doing no wrong to a neighbor’’ from which a series of norms can be promulgated.

At this point, the new perspective on Paul provides what is an important insight in understanding the potential connection between Paul’s triad and Kelsen’s basic norm. When Paul speaks of the law, with a few exceptions he means the Jewish Torah. These exceptions, for example ‘‘the law of the Spirit’’ or ‘‘the law of faith,’’ refer to the principle of faith or love. They have also been understood to mean ‘‘rule’’ or ‘‘norm.’’ ¹⁰⁶ Hence, it is entirely consistent with Paul’s Jewish context for the triad for the authority of law to be based upon the ‘‘law,’’ ‘‘principle,’’ ‘‘rule,’’ or ‘‘norm’’ of love, particularly with Kelsen having acknowledged the law of love as a type of basic norm which provides the authority for law. Thus, Kelsen’s basic norm bears great similarity and exhibits features characteristic of the Pauline law of love as described above, as well as exhibiting consistency with the Thomist framework in the sense that for Aquinas, the content of the natural law providing authority for the human legal system is the law of love. In this way, the notion of the law of love as a single, divine positive principle (constituting the basic norm in Kelsen’s jurisprudence) is a useful alternative foundation for exploring the authority of law.

3 The Internal Conviction of Conscience

Finally, the third horn of the Pauline triad, that the civil authorities should be obeyed because of an internal conviction of conscience, will be explored in relation to Kantian natural law in this section. Kant proposed that all authoritative law is ascertainable by virtue of practical reason, inherent in all humanity. It is through practical reason that people hold moral feelings or legislated laws. ¹⁰⁷ For Kant, the obligation to obey law is internal: the categorical imperative, which is to act as if the principle of your action were to become a universal law of nature. ¹⁰⁸ This categorical imperative is discovered by practical reason and self-legislated by a rational act of the will, and therefore it is self-enforced. ¹⁰⁹ As such, the effect of the categorical imperative is that citizens obey the state law irrespective of who legislates it, since the law was made by the citizens themselves. ¹¹⁰ Thus, Kant demonstrates a non-instrumental obligation to obey law, which for him is comprised of the dictates of practical reason contained in the categorical imperative, an internal function that produces compliance to law. ¹¹¹

In this way, the Kantian categorical imperative may be observed as a version of the Pauline law of love, since the law of love is a universal law of nature and is self-enforced by conscience. However, the main point of difference is that for Paul the source for the ‘‘categorical imperative’’ is transcendent and external (God), but for Kant the source is immanent and internal (self). Nevertheless, there is significant agreement between the Kantian theme of internal conviction by conscience and the Pauline notion of obeying the civil authorities for the sake of conscience. As established above by Žižek, Badiou, Douzinas and Aquinas, a necessary condition for obeying the law of love according to Paul is the fact that it convicts in conscience. It is the inner transcendental authority that compels the subject to obey the law by virtue of self-subjection and self-legislation resulting in self-enforcement. Paul has specific regard to this in Romans 2 and Romans 13, as well as understanding it to be part of the new covenant accessible to all people through practical reason, as Finnis explains through Aquinas. Thus, there are again strong connections between Paul’s argument that the civil authorities should be obeyed as an internal conviction of conscience by the law of love, and the natural law motif of obedience to an internal function which produces compliance to law. This dimension of the law of love is an important component for considering features of an alternative Pauline foundation for the authority of law.