Appendix

Recovering Law’s Intelligence

Each era’s agony receives its physiognomy from a certain tangle of problems, from a specific difficulty in responding to the primary human question: What is to be done? This difficulty is inseparably practical and theoretical; it concerns inseparably action and intelligence. Since human action is in the first instance corrective or rectifying, it presupposes as precise a diagnosis as possible of our situation as calling for a remedy, a diagnosis of our predicament—to take back an old French word that the English took from us, as is their habit. What then is our predicament?

I believe that the most precise way to designate what afflicts us, what troubles and demoralizes us, is to say simply: we no longer know what law is; we have lost the intelligence of law. The point is not to deplore that we disobey the law, that our morals are disordered, that the youth, as is often said, are without standards—all that is perhaps true, but the main point is that we no longer understand what the law is about. We no longer understand law according to its essence. We no longer understand law as the rule and measure of action. Our most urgent task is therefore to recover the intelligence of law as rule and measure of action. Thomas Aquinas is certainly the author who can best help us—Christians as well as non-Christians confronted with the loss of law’s meaning—to carry out this task, if only we make the effort to understand his work in its full amplitude. The purpose of this presentation is nevertheless not so much to expound Thomas’s restorative views as to examine our predicament more closely.

I have said that we have lost an understanding of law, or law’s intelligence. We have not lost it by inadvertence or negligence. We have lost it because we wanted to lose it. More precisely, we have fled from law. We are still fleeing from it. We have been fleeing from law since we took up the project—let us call it “the modern project”—to organize common life, the human world, on a basis other than law. We have been fleeing from the law since we undertook to regulate our actions otherwise than by law, to seek the rule of our actions elsewhere than in law. This is not a matter of a moment’s distraction or mistake. What is at stake is an immense enterprise to which we owe, for better and for worse, the driving and ordering of our common life over three or four centuries.

The adequate description of this enterprise cannot be my subject here. I shall limit myself to the indispensable points. If our actions are not to be regulated by law, then what shall regulate them? What kind of rule can replace law? We know that for a long time we have intended to regulate common life not according to God’s or nature’s law but according to human rights. Man is the being who possesses rights, and to live humanly is to assert one’s rights. This new definition or determination is not sufficient. It still retains something negative or polemical: to assert one’s rights is to “defend” them against those who deprive you of your rights, who harm or violate them, or against a society that is always curtailing them. In order to be able to order collective life completely or sufficiently, another, positive principle is needed, that of self-interest. The person who asserts his or her rights is also one who seeks his or her interests. Rights and self-interest are the two principles that allow for the ordering of the human world without recourse to law as the rule and measure of action. Of course we still have laws, indeed more laws than ever, but their raison d’être is no longer directly to regulate our actions but rather to guarantee our rights and equip us to seek our interests in a way that is useful or at least not harmful to the common interest. The sovereign, liberal, and representative state, by guaranteeing our rights, protects and encourages civil society, which is the framework within which we freely seek our interests. This is our political formula.

This immense political enterprise produces and presupposes a profound transformation of our humanity, as social beings and citizens. The person who asserts his rights and seeks his self-interest is no longer the agent for whom law provides the rule and measure of action. As the being who has rights and pursues his interests, he defines himself first of all in relation to himself, a relation that is subjective or subjectifying and by which he guarantees his independence with regard to any objective rule, that is, any law of God or of nature. This back and forth between self and self, this circle of self to self, verifies that the human being bears within his being no objective rule of action. In this sense the movement of subjectification according to rights and interests leads to the dismantling of the edifice of conscience or the preempting of its construction. The habitus that contains the principles of natural law must be deprived of force or validity in order to allow the subject fully to assert its right and its interest in the face of the right and interest of other subjects. The rule of action no longer resides within the agent but outside of subjects, at the interface where subjects meet each other. This strange exchange by which the subject deprives himself of the sure law that resided in his being, in his conscience, in order to go off in search of an indeterminate and unstable rule in the encounter with similarly disarmed subjects, this search for the self through the effacement of what gives the self its integrity, would merit a long examination, at once historical and systematic. Here we will limit ourselves to the consequences of this transformation of the agent into the subject.

These consequences range from the intimate to the immense: they affect what is most delicate for every human being as well as the whole of humanity in the way that it orders itself as a mass.

“The immense” refers to the world. Agents fleeing law have become subjects regulating their actions according to the world. Rejecting or leaving behind the laws of God or of nature—religious, moral, and political law that once regulated and measured their actions by making agents participants in a community, whether church, political body, or family—subjects have tended more and more to assert their rights and to pursue their interests in the unlimited space of the world by forming an immense system of action that has gained an authority over us that is without rival, under the name of the global market. The rule that the law no longer gives us, or that we no longer want to receive from the law, we seek very precisely at the end of the world, in these commandments that are sent back our way, with a power that subjugates the will and dumbfounds thought, by the world as the totality of human beings as rendered effective by the market or by markets. These are recent developments, but they were, as it were, contained in the Cartesian project of making us “like masters and possessors of nature.” What is striking in this project is that it proposed an immense horizon of action, which opened up an unlimited career for this project, without attaching any rule or measure to it. Today the project has come up against its limit. We ask ourselves anxiously how to protect nature against its master and possessor; we seek in nature itself the law of our lawlessness. If what we have said up to this point has any pertinence, this question will remain vain. This is not to say that it is not necessary to preserve nature as much as possible, but the idea of protection in itself bears no rule of action any more than does the idea of the mastery of nature. We will effectively protect nature only if we rediscover the rule of human action, that is, law.

As I have said, the consequences of the transformation of the agent into the subject affect not only the immense but also the intimate. Since the subject flees law as such, there can be no rule for regulating the association in which the human being unites himself to another human being to found a unit capable of producing a new human being and thus continuing humanity. One of the most essential laws is that which, as it were, holds together the difference of the sexes with the difference of generations. The other sex is the strange proximity of that which is furthest away; the other generation is the strange distance of what is nearest. No human being can by himself regulate this distance or this proximity. To try to do so is to enter into a vertigo, a loss of the self from which there is no return. This is why laws of marriage and of filiation in a way make up the original laws of the human world. We have undertaken to abolish them in order to put in their place the freedom of invention and artifice of a subject defined in relation to his or her desire. In the place of the law that builds a bridge or sews a seam between the primary constituents of the human world, we put the project of a subject that means to remain in an infinite proximity with itself and thus to fabricate bonds at its pleasure. We often wonder today how homosexual activism was able to determine to such a degree the terms of the public debate, even though its legal claims are really and sincerely shared by a very small part of society. Homosexual desire places the relation to self in a position of inviolable sovereignty, since it cannot give place either to the natural difference of sexes or the natural difference of generations. By completely legalizing homosexual unions, we have achieved or intended to achieve a human world as detached from law as from nature, detached from natural law in the strongest and most pregnant sense of this expression. Homosexual desire, as desire, cares nothing for law. By nevertheless demanding to be legalized, it invalidates and abrogates law as such, law as the rule and measure of action. This is not true in the case of the law of heterosexual marriage, which is not primarily about heterosexual desire, but about the sexual difference. The legalization of homosexual marriage provides the modern project with something like its final destination, the proof that we have succeeded in organizing the human world without rule or measure, that we are finally living, and know that we are living, outside the law.

Thus, in the order of the immense as well as the order of the intimate, at the end of the mastery of nature as of flight from law, we are today equally without either rule or measure.

However violently we may be carried away by this conquest of nature and this flight from law, nevertheless each is reaching its limits. The limits to the flight from law are easiest to discern. We know with a certain knowledge that the difference between the sexes and that between generations, and more generally the need for a rule and measure of human action, will necessarily, if not gloriously, prevail against the excesses of the process of subjectification. One might even say that this process, by its very excess, gives plausibility to the notion of natural law, of a rule and measure of action that escape limitless subjectification. Doubtless such a law has never appeared as desirable as it does today.

Still, the desirability of such a law does not mean that it is effectively available. It is surely available insofar as Saint Thomas’s elaboration responds fully and delicately to our need. At the same time, his “Treatise on Law”¹ has been available for centuries without preventing or slowing down our flight far from the law. Its authority has been marginalized along with that of the Catholic Church. To recover law’s intelligence thus cannot consist only in carefully rereading Saint Thomas, as indispensable as this effort may be. We cannot proceed as if nothing had happened for seven or eight centuries. In order to make an adequate notion of natural law effectively available, we must measure the obstacles that stand in the way of understanding the long flight that has transformed agents into subjects.

Because we are carried along by the movement of subjectification, we tend to understand the natural as the moderns understand law, that is, as a limit on freedom—in the event, a desirable limit. There is no doubt that recent developments in our power over human life have sharpened this desire to set a significant limit on our freedom to exercise this power, a limit that is significant in the sense of giving meaning to the rule such that the rule can contribute to defining the fact of being human and to putting our humanity beyond our power. This perspective or this approach is surely legitimate and salutary. At the same time, it is purely defensive, serving only, in the best case, slightly to slow down an untrammeled power. This guardrail law, a law that posits limits to the technical interventions on life, thus calls for a complement, or rather a foundation, in the form of an encompassing law that, rather than fixing an external limit on limitless faculty of action, would propose instead to supply an intrinsic rule and measure of human actions across their whole spectrum. In brief, to go right to what seems to me to be the most important point, it is urgent to recover the fullness of law as practical reason motivating and regulating action, specifically action aiming at the common good. It is because he understands law in these terms and in this perspective that Thomas is so precious for us.

Having said this, we immediately take the measure of the difficulty before which we find ourselves. What we see as necessary quickly appears to us not only as difficult or very difficult but rather as impossible or, better said, as absurd. Why is this? Simply because it is against this practical reason as the motive and rule of action in view of the common good that modern political thought was built, and this by elaborating the arrangement based on rights and self-interest that we have evoked. It is true that the present difficulties and perplexities call upon us to reopen the case and raise the question whether the modern criticisms of practical reason as defended by Thomas, following Aristotle, were as well founded as the moderns have believed. Still, as preoccupied as we may be by the consequences or the effects of the modern project, we must admit that its original motives were not lacking in power. After all, this practical reason ordered toward the common good, so exquisitely described by Saint Thomas, did not make it possible effectively to order the common goods of the two cities, the earthly city and the church, or the city of God. There is nothing to add or to take away from the Thomistic analysis of the various kinds of law and their reciprocal relations, but it was not on the basis of this analysis that the order of European life was established. This order was established, on the contrary, on the basis of the radical critique carried out by another Thomas, this one the confessor of the modern state, Thomas Hobbes. In effect, how can this practical reason that motivates and regulates the search for the political common good as well as the religious common good—how can this practical reason discover the synthetic law of the human order when these two common goods are ordered by two distinctive legislative powers and two distinct laws? This mixing or confusion of two powers and of two laws, which led Christian subjects or citizens to “see double,” according to Hobbes’s amusing and illuminating expression, could not be unraveled and so had to be cut through. We are still living with the consequences—some of which are very positive—of this cutting, this energetic and intelligent decision, but a decision that simplified and even brutalized the order of the soul, an alteration or distortion that would only continue to worsen. However this may be, this decision consisted in depriving the church and, more generally, institutional religion of all commanding power and reserving this power to the political realm or to the state.

But this coup d’état—the expression is fitting—implied that commanding must find another motive or another basis than the law. It was in effect the notion of law as the rule and measure of action that justified the pretensions of the church and gave it an incontestable advantage of legitimacy over the state. But upon what may the commands of the political realm be established if not on the capacity to produce law that leads to the common good? You know the answer. The legitimacy of the state’s commands will henceforth be based not on the promotion of the common good but on the protection of the rights of every subject. In order to cut through the knot of political and religious laws, people must be delivered from the law; they must be placed outside the law. It is starting from this position as outlaw, but an outlaw status that defines itself in terms of rights, that the human order will be recomposed, a recomposition that, as we said in the first part, is not only not finished but has lately taken on a strange virulence. The political order will henceforth presuppose and thus produce this lawless humanity that we know so well, this free and equal human being who founds himself on his self-relation. This is the political basis of the flight from the law whose power and duration I have evoked. Henceforth the human order—familial, social, moral, and religious—among us is suspended between a subject of rights that tend to the lawless and a sovereign political authority that claims to stand above all law.

This is not the place to examine how this violent artifice was made livable by the political genius and the moral resources of Europeans. Nor is this the place to consider, for example, the elaboration of representative government founded on the separation of powers. What yet must be noted in our discussion, though, is the binding and synthesizing power of Europe’s proper political form, that is, of this nation that provided the framework in which the lofty sovereignty of the state and the ardent activities of subjects greedy for rights were reconciled between themselves and with familial, social, moral, and religious laws. This is the tightly and finely woven synthesis that today is in the process of unraveling.

I have not lost the thread of my discussion. It was necessary to recall certain points of history, even in such a hasty and compressed way, in order to bring out the motives that led to the abandonment of Thomistic natural law by those who might be called Europe’s leading minds and to help us take the measure of the difficulty that must be faced in any return to this natural law. Would this not require deconstructing the whole political and moral history of Europe? At the same time, I have just mentioned, even more rapidly, the national synthesis thanks to which a nonnegligible part of the requisites of this natural law have been preserved and honored. What the present moment signals is the decay of this synthesis, given the unimpeded frenzy of the flight from law. The return to natural law thus takes on a different meaning than what it would have had or what it had in the eras of the construction of the modern project. There is no question of renouncing the separation of politics and religion, the necessity of which each of us can verify; the point is rather to recover an understanding of the law as such, such that the disordered extension of rights not be allowed to render unintelligible the very bases of European moral life. In an era when institutional Christianity has neither the capacity nor the desire to undertake the slightest project of domination, the invocation of “laïcité” or secularism, which has become ever more mechanical and insincere, serves only to block in advance any recovery of strength, however modest, on the part of Christianity as a religious institution. What once was an obstacle to the effective application of the Thomistic understanding of law—that is, the fact that it makes it impossible effectively to separate political from religious law—is no longer one, since what is in danger today is not the separation of political and religious law, but law as such.

To conclude, let me gather and extend the points already made. It is too late for us to limit ourselves to the defensive use of natural law that comes naturally to mind, as I have noted, when we aim to preserve a kind of minimal humanity against the assault of an unlimited artifice in the service of a disordered desire. To use a military metaphor, law’s last line of defense is about to give way. We are required to be more ambitious. To recover an understanding of law in its plenitude is to recover the use of practical reason in the pursuit of the common good. This common good has a political component and a religious component, but we are no longer at risk of “seeing double.” Hobbes’s approach, which the secular party pursues obstinately, is now anachronistic. The problem is no longer to define the border and to order relations among two institutions, one political and the other religious, both equally ambitious and proud, but to measure the content in terms of the common good of this mixed law that has defined the Christian custom of Europe over the centuries and that is rediscovering an unexpected ordering power. The small number and often the timidity of those who propose or maintain it and the large number and often the aggressiveness of those who reject or despise it should no longer impress us. It is obvious to everyone that that part of public opinion that has dominated for so long and that intends now to finalize its triumph no longer has any idea of a government representative of a community of citizens. Along with a large part of the European political class, it has put itself in the service of an ideology of unlimited rights of the subject that has destroyed the very idea of a democratic government, or for that matter of a government that is responsible before the community it is charged with governing. The most sober way to recover this idea, by escaping from the paralyzing equivocations of the language of rights, is to hold together the idea of a human bond, of common action, and of a commanding law—that is, of practical reason in its commanding function. It is in the Thomistic analysis that these notions find their most illuminating articulation, provided that we read Saint Thomas in the perspective that belongs to him, which is also Aristotle’s, that is, the perspective of a commanding and active political reason, and not only as a makeshift barricade for the party that long ago accepted its defeat.

Christians, and perhaps especially Catholics, are inclined, by a mixture of fear and disdain, to political passivity. In a country like ours, as I have suggested, they have moreover become accustomed to defeat. Saint Thomas teaches us to have more confidence in our practical reason and more esteem for our political task. When we act politically, we are not interfering with or usurping the role of providence. We find in question 91 of the “Treatise on Law” in the Summa Theologiae a formula that merits our reflection on this subject: “Inter cetera . . . rationalis creatura excellentiori quodam modo divinae providentiae subjacet, inquantum et ipsa fit providentiae particeps, sibi ipsi et aliis providens.” “Among all beings . . . the rational creature is subject to divine Providence in a more excellent way, in that it is itself made a participant in this Providence, by providing for itself and for others.” Natural law, a part of eternal law, requires that we govern ourselves in the sense that we provide for ourselves according to our needs as rational creatures. This subject and this project, which every citizen who takes his personal as well as his civic life seriously and is well informed makes his own, can today be understood, formulated, and proposed in a coherent manner only within the Catholic Church, especially when this church is instructed by Saint Thomas. This is a political but a nonpartisan program, since the point is the reactivation of political responsibility as such, not the formation of some “Catholic party.”

I propose these suggestions in a spirit of sobriety. I am not unaware that, when separated from the arguments that provide their basis, they must seem completely chimerical—whether one finds the chimeras pleasing or displeasing! Nor am I unaware of the doctrine with which all authoritative voices beat us down: we have left religion behind, and it can no longer be more than a private affair incapable of contributing to the orientation and even less to the government of the common world. I have also heard what is said of the de-Christianization of Europe, and I have observed certain of its effects. At the same time, I have observed the following: the forces that have pushed Christianity to the margins of European life and have for a long time threatened or promised to destroy it or replace it are now just as weak as it is. I do not mean only communism, now dispersed like Pharaoh’s armies, nor socialism, which is nowhere to be found; I speak also of this imperious republic that a century ago inflicted upon the Catholic Church in France a political debasement that was humiliating but salutary. In this “immense plain and sleepy void”² that Europe has become, there remains but one spiritual force still ascendant, the one to which I have devoted a good part of this discussion and which demands with virulence that subjective rights be absolutized.

Even so, I affirm with tranquility, its weakness and sterility are inscribed within its very project. It can only and wishes only to undo and to unbind; it does nothing but render us every day more immobile in our languor and impotence, by turning us away from a common good capable of caring for and governing itself. The kind of panicked perplexity that has gripped Europeans and continues to spread, whatever may be the vicissitudes of the Euro, is the helpless disarray of an immense population of rich talents and resources but whose fate is no longer the responsibility of any true government. The regulatory regime under which we have labored for twenty years signifies the disappearance of all political prudence in Europe. Europeans see their continent, once master of the world, slide toward political insignificance but are not moved. Either this decline will proceed to an inglorious end, or the need finally to govern ourselves again will meet the proposition of high political prudence contained in the Thomistic natural law teaching. In this case, the need and the proposition drawing life from each other, we will open the way not to a renewed European domination (which is neither possible nor desirable) but, through the common action of European nations, to a reestablishment and renewal of the physiognomy of our continent, a recovery of a political and spiritual history that is now about to end. The renewed confidence in our common destinies will help us to look up once again toward divine providence. Europe’s religious destiny is not written in the statistics of baptisms or confirmations; it depends on the common action of European nations, an action that we will either know how to carry out, according to the inseparably civic and Christian perspective that is the very meaning of Europe, or we will not. This destiny is thus as precarious as all human things, that is, as dependent equally on our wisdom and on our prayers.