Is Consent a Theological Category?
Joshua Mitchell
Let me begin with a confession of sorts made necessary because of the analytic character of a large portion of this essay. That is, namely, that Professor Wolterstorff most certainly scored higher on the analytical portion of the GRE than I did.
Whatever competence I do have will have to be brought to bear, therefore, not on the nuances of the argument he considers early in the article, but rather on the categories that he provides, on the spaces within which the arguments take place. In a footnote to his conclusion, Professor Wolterstorff tells us that his analysis is more philosophical than theological. Mine will be more historical than philosophical and, I hope, adequate to the theological issues at hand.
Let me begin with his conclusion. There we find that there are two ways, and two ways only, of accounting for the authority of the State: one, as we read earlier, is the consent theory, which is the only tenable theory produced by the humanist tradition; the other is the theistic account. If one holds that the state does have authority—that is, if one does not go for the anarchist option—then those are the options between which one has to choose. The alternatives, then, are either a bottom-up humanistic account or a top-down theistic account of the authority of the State. The assumption made throughout the piece, to which I want to draw your attention here is that consent theory is by nature secular and founded on a secular philosophy.
The humanistic consent-based account fails, Professor Wolterstorff argues (I shall not repeat his reasons here). That leaves us with the need to recur to a theistic account. With respect to the latter, the two alternatives are either a quasi-Calvinist account, in which the state acts on behalf of God, with all that that might entail in the way of abuse. Let us call this the “deputy” theory, as he does. The second option is an account in which the state is a “delegate” in the name of God. In this latter alternative, the holders of the various offices of the state are culpable actors who maintain their office insofar as the citizens of the state deem them morally legitimate. Unlike a quasi-Calvinist account, in which the inscrutability of God’s justice comes perilously close to being a warrant for the inscrutability of the justice of his deputies, the delegate theory insists upon a kind of transparency (perhaps better, translucence) when it comes to matters of justice and morality.
Theologically speaking, humanistic consent-based theories leave us where man is always left when he abandons God, in that nether region of promised coherence that, upon inspection, lacks any foundation and spins endlessly inward upon itself. The deputy theory saves the majesty and inscrutability of God (“Where were you when I laid the foundations of the earth?”[1] ), but at the cost—and “debt” is the right metaphor here—of the withering away of humankind. The delegate theory of the authority of the State purports to find that always-elusive middle ground in Christian theology which holds together the majesty and inscrutability of God, on the one hand, and the moral dignity and free will of man on the other. A paradox so acute, insolvable, and yet so necessary that Augustine in The City of God, Book 5, Chapter 10, said that, “we must hold to the one for the purpose of right teaching and the other for the purpose of right living.”
I do not know if Professor Wolterstorff was self-consciously aiming to balance this paradox but, in my view, that is what his proposal really amounts to. Perhaps the delegate theory of the state does, in fact, find that middle ground so necessary and difficult at the same time, that is so elusive within Christianity. I cannot say. There is more that would have to be said about it first. What is meant by the moral legitimacy necessary for this state to be authoritative? Are there specific forms of government that emerge through such a theory? Are others precluded? Does such an understanding give rise to checks and balances, necessarily? Does direct democracy accord with it? How about representative government? How about federalism? There are a host of questions that arise. All of which boil down to this: does the delegate theory of the state authority provide a purchase, so to speak, on states as we have them now and as they have developed here and there in history or, after all is said and done—to invoke the inimitable phrase by which Hegel sought to critique Kant—will we find ourselves “in that night in which all cows are black?”[2] Theologically adequate though it may be, what bearing does it have on the extant historically contingent forms that we have witnessed in the West and elsewhere? Moreover, and perhaps most of the point, how should we move forward with the assistance of this insight? These are difficult questions, for which I am in no position to provide answers.
So let me introduce a new line of inquiry, in keeping with the spirit, but not with the letter, of Professor Wolterstorff’s essay. I mentioned a moment ago that Christian theology is involved in a delicate and in some sense impossible balancing act that maintains both the sovereignty of God and the free will of man. Emphasize the former and you get Calvin; emphasize the latter and you get the autonomous self. To be sure, there are other sources of the idea of the autonomous self besides Christianity—Renaissance humanism, for example. But it is also plausible to argue that the very idea of the sovereign self, the autonomous consenting self, emerged out of Christianity. Hegel and Nietzsche are rarely allies, but on this matter they surely agree. And should that agreement be warranted, then the sovereign self, the self that consents, cannot, properly speaking, be set against the religious account of man; rather, the consenting self has to be understood as one motif among others within a constellation of possibilities upon which Christian political thought can and has relied. Indeed, to put the matter more boldly, consent is the other side of the coin, so to speak, of the so-called “top-down” theory of the divine authority of the state—much the same way as the sovereignty of God and the free will of man are coterminous with each other, to return to Augustine’s paradox in The City of God.
Now, it would be ridiculous to claim that contemporary theories of consent are religious. They are highly analytical and without apparent religious content. Yet, it is worth noting that the efforts on the part of contemporary consent theorists to comprehend Hobbes and Locke—the two great originaries of the idea of consent in the modern world—seem woefully impoverished and unable to do anything more than steal crumbs from the feast. This is so, I suggest, because they ignore the ground on which Hobbes and Locke’s respective arguments in favor of consent really rest; namely, a theological understanding of the human situation. For Hobbes, the situation in the state of nature corresponds—as he makes clear in part III of Leviathan—to the Hebrews at the base of Mt. Sinai. Without Moses, their Leviathan, there can be only death for them. When Moses, the personator of God, returns from the summit, the Hebrews consent to let him rule because they know that without this personator of God, they will surely die. If one wants to see Hobbes as a consent theorist of the secular sort, then so be it, but at least be consistent and claim that Exodus 32 likewise offers a similar theory of consent.
Locke’s theory of consent appears to be very different from that of Hobbes, yet both accord in the following decisive respect. The situation of man, within which consent is thought through, is decisively theological or, to be more precise, the narrative trope within which consent appears is unequivocally biblical. For Locke, consent means nothing without reason, that candle of the Lord granted to Adam so that he may have dominion over the earth—not to exploit it, but to be its steward. Reason is thus the faculty that all humankind shares by virtue of its common inheritance in Adam. Here the accidents of history, of birth, and of blood mean nothing in the face of the primordial fact of our unity in Adam. Consent can be nothing without a mechanism by which the accidents of history, blood, and birth are discounted. For Locke, Adam provided just this. Augustine in The City of God says the same thing.
We moderns, of course, find this very naïve, but we have not escaped the need to found a theory of consent on a mechanism that discounts the proximal forces that make up our identity. We have, for example, found just such a mechanism in Rawls, whose veil of ignorance strips away the accidents of history, birth, and blood in a manner that only an American can find credible. Alternatively, we have done the very same thing through the pure speculations of our reified academic philosophical enterprise, which has become quite dissevered from “that real question before us”—as Socrates said to Glaucon in the Republic—“namely, how it is we shall best live.”
Grant, then, that the rudiments of early modern consent theory cannot be understood in the reified language of analytical philosophy, that it was suffused with religious overtones and, to put the matter even more strongly, that they achieved the measure of coherence that they did precisely because of this tonal structure. So what? What does it matter if consent is now understood to be essentially, or at least, originally theological rather than secular? What implications does this have—aside, that is, from disturbing the antinomy setup by Professor Wolterstorff’s analysis? The answer lies in the reason consent was set forward in the first place; namely, because at the dawn of modernity, in the Anglo-American world, people were groping for a political theory of representation. Now this is curious in itself. Why representation? Why not a tribal formulation of politics, on the basis of which the winner takes all? Or why not, say, a model of democracy akin to the one that the Athenians had, that is, a democracy by lot? Here I think religion matters a great deal. And by this I do not mean that religion matters with respect to the relationship between consent and the authority of the State, for in our contemporary world Professor Wolterstorff is surely right in saying that it does not matter. Rather, the problem for which consent is a solution, namely, representation, has its roots in Biblical religion. Are there Biblical texts that underwrite this claim? I think here that St. Paul is helpful again, though not the Paul of Romans 13, but rather Romans 5, 18, and 19, and I Corinthians as well. In I Corinthians, for example, we find this: “for since by man came death, by man also came resurrection of the dead, for as in Adam all die even so in Christ shall all be made alive.” What Adam is the occasion for, Christ is the solution to. Adam is initiative, Christ is transformative. Adam stands for, represents the human kinds; all that follow him, inherit from him. Christ stands in for, represents humankind before God. This sublime standing for and standing in for, patiently pondered and worked through for more than 1500 years, eventually becomes not just an object of thought but a category within which thought does its work. Thus, during the political, religious, social, and economic crisis of the Reformation, it is no wonder that consent is thought through against the backdrop of the category of representation by Hobbes, Locke and, strangely, even Rousseau.
A civilization constituted and sustained by the sublime mystery of representation is bound to think through the crisis it faces in terms of its deepest and most durable categories. So I am not prepared to cede the territory of consent too quickly to the humanists. The fact of the matter is that early modern consent theory was thought through in terms of religion, as anything more than a rough perusal of Hobbes and Locke will show. Moreover, I think it a grave error to consider this merely a scholarly matter, for it seems to me that we in the West take for granted that the authority of the State has very much to do with consent and representation, however many now fervently hope that these things can be grounded in secular terms. This accounts, I believe, for the incredulity on our part when we look elsewhere around the globe and wonder why certain peoples with non-Jewish or non-Christian traditions are seemingly unconcerned with consent and representation. In a word, paying attention to the religious roots of consent in the West alerts us to the fact that it is a provincial development, not necessarily universalizable. Rendering it as a category appropriate to a non-religious world tacitly supposes that it is philosophical and that, by virtue of the fact that reason is a universal attribute of humanity, a consent theory of the authority of the State can obtain in a world in which religion has no place. This is, I believe, an empirical question, which the evidence of the struggles of the century will confirm or deny. My wager, if I may be so bold, is that consent is a theological category, and that if theories of consent and representation of the sort that privilege the individual rather than the group are going to take hold in meaningful ways in regions of the world without a long history of living with these theories, they will have to be nourished by the indigenous religious traditions that continue to provide the categories within which thought does its work.
2. Hegel, The Phenomenology of Mind, #79.