Funkenstein on Indeterminacy and Law

I recently read Amos Funkenstein's chapter on divine providence and the invisible hand in his massive Theology and the Scientific Imagination from the Middle Ages to the Seventeenth Century. Funkenstein has plenty of interesting things to say--though I must confess I don't quite follow the arc of the chapter as a whole. It reads more as a series of episodic looks into distinct though connected accounts of providence and the philosophy history from late antiquity to Vico, with suggestive nods to Smith and Marx. 

One section I found especially interesting, however, was Funkenstein's treatment of the place for indeterminacy in law. Funkenstein begins this section with a discussion of Christian and Jewish attempts to deploy a principle of accommodation to understand the role of sacrifice in the Old Testament. The suggestion through all this is that modern accounts of historical progress (from Grotius/Smith's stadial theories of history, to Kantian providentialism) come out of exegetical debates over apparently inconvenient Old Testament descriptions of God and the Jewish law. The broad interpretive principle was that the "bible speaks the language of man," and that these passages must be understood as communicating to the primitive Jewish people in a way they could understand. 

Ritual sacrifice is a particularly striking example. Augustine follows a long Jewish tradition in concluding that religious sacrifice was appropriate in a particular time given the prejudices and sensibilities of the Israelites. Today, however, modern Christians have reached a stage of development  that allows them to more fully understand and worship God without reliance on such religious practices. For Augustine, the crucial break was of course the incarnation, while Jewish commentators relied on a historic narrative of religious monotheistic maturation. Here's Augustine in one of his letters (see p. 223 of Funkenstein):

The divine institution of sacrifice was suitable in the former dispensation, but is not suitable now. For the change suitable to the present age has been enjoined by God, who knows infinitely better than man what is fitting for every age, and who is, whether He give or add, abolish or curtail, increase or diminish, the unchangeable Governor as He is the unchangeable Creator of mutable things, ordering all events in His providence until the beauty of the completed course of time, the component parts of which are the dispensations adapted to each successive age, shall be finished, like the grand melody of some ineffably wise master of song, and those pass into the eternal immediate contemplation of God who here, though it is a time of faith, not of sight, are acceptably worshipping Him.

They are mistaken, moreover, who think that God appoints these ordinances for His own advantage or pleasure; and no wonder that, being thus mistaken, they are perplexed, as if it was from a changing mood that He ordered one thing to be offered to Him in a former age, and something else now. But this is not the case. God enjoins nothing for His own advantage, but for the benefit of those to whom the injunction is given. Therefore He is truly Lord, for He does not need His servants, but His servants stand in need of Him. In those same Old Testament Scriptures, and in the age in which sacrifices were still being offered that are now abrogated, it is said: I said to the Lord, You are my God, for You do not need my good things. Wherefore God did not stand in need of those sacrifices, nor does He ever need anything; but there are certain acts, symbolic of these divine gifts, whereby the soul receives either present grace or eternal glory, in the celebration and practice of which, pious exercises, serviceable not to God but to ourselves, are performed.

Ritual sacrifice has to be understood as a legal practice appropriate to a particular historic time and place. The development of appropriate religious practices is just a part of the great beauty (notice the aesthetic language) of God's providential plan for history.

Funkenstein turns to Maimonides, who further develops this philosophy of history. Maimonides emphasizes that every law is BOTH a commandment of reason and obedience. This means that the commandments of the Old Testament no longer observed by modern Jews were not instituted simply to teach obedience, but were built around a core rational principle.

This interpretive approach--that we can and should identify the underlying reason for even obsolete religious laws--combines with Maimonides' philosophy of science. (Here I don't entirely follow Funkenstein). On Maimonides' view all natural laws must contain some degree of contingency. This principle is Maimonides' way of explaining features of the dietary/ceremonial law that always had a rational purpose, but no longer bind practicing Jews. I'll quote Funkenstein at length:

What do we really look for when we ask for the reason of a commandment? Must a rationale for a specific law cover every part and detail of that law? In a preliminary answer, Maimonides draws a strict analogy between laws of nature and social laws. In the second part of the Guide, Maimonides developed one of the most original philosophies of science in the Middle Ages. There he proved that not only are laws of nature (the ordering structures of nature) in themselves contingent upon God's will; but that each of them must include, by definition, a residue of contingency, an element of indeterminacy. No law of nature is completely determining, and no natural phenomenon completely determined, not even in God's mind. To illustrate the matter, allow me to invent an example. Assume that tables should all be made out of wood; assume that the kind of wood most suitable for tables is mahogany, and that the best mahogany can be found only in a remote forest in Indonesia. A carpenter who wishes to make a perfect table has good reasons to choose mahogany and to travel all the way to the said forest. But there and then he will ultimately be confronted with two or more equally reasonable possibilities. Should he choose the tree to his right or to his left? He must choose one, and both are equally suitable. The purpose can never determine the material actualization in all respects, down to the last particular; a "thoroughgoing determination" is ruled out by the very material structure of our world. In the very same way, there may (indeed must) be a purpose to the universe, but it does not govern all particulars. The purpose of the universe may require the circular orbit of the celestial bodies. But it does not account necessarily for the different velocities or colors of the planets (Funkenstein p 229).

So if I understand correctly, for Maimonides a law as a whole has a clear rational purposes (a rational final cause, I suppose), but that purpose need not explain every detail of the law. (What I find tricky about this is that Funkenstein contrasts Maimonides' position to that of Sa'adia, who argued that many divine commandments were simply irrational in their content, but existed merely for the ultimate purpose of inculcating obedience to God. Maimonides' rejects the strong claim that any of these laws themselves were irrational, but that there is simply a degree of free, contingent choice built into the nature of law itself. I see the difference, but it's worth thinking it through).

This Maimonidean philosophy of science (and therefore philosophy of law) is an extension, Funkenstein argues, of a principle always found in Aristotelian metaphysics. It also interestingly maps onto post-Newtonian physics: "In a sense, Maimonides' principle of indeterminacy is closer to modern than to classical physics: modern physics likewise assumes a principle of indeterminacy not as a limit to our knowledge, but as an objective indeterminacy within nature itself." Miracles and special providence, on this view, are not violations of the natural law, but free occurrences within the reservoir of contingency preserved by the nature of laws.

If it is true that indeterminacy is built into the nature of laws themselves, then we must reject Paley-style divine watchmaker arguments. (Newton and Paley always go together). If the universe was indeed governed by perfectly necessary laws that necessarily explained every single event, then there would be no reason for a creator God! The very fact that there is indeterminacy built into the nature of things is evidence that the order of the universe does not derive from the nature of matter itself, but from an imposition by the Creator. (Funkestein says this argument draws from Kalam, and is repeated by Kant).

This, ultimately, is Maimonides' explanation for the rational purpose of sacrifices that are no longer required. The final cause of these sacrifices is perfectly intelligible even today. But the particular matter of the sacrifices was always less important. Again, here's Funkenstein quoting Maimonides:

We may be able to explain, in view of their purpose, why sacrifices should have been instituted in the first place; "but the fact that one sacrifice is a lamb and another a ram; and the fact that their number is determined-to this one can give no reason at all, and whoever tries to assign a rationale enters a protracted madness." Rather than looking for an always determining principle for each law, we should look for a contingent rationale. Maimonides found such a contingent rationale in the concrete historical circumstances under which these laws were given to the nascent Israel. (Funkenstein 231)

Unsurprisingly, the contingent rationale for the particular sacrifices demanded of ancient Israel was tied to their particular historical situation. The relative closeness to polytheistic sacrificial rituals was a deliberate pedagogic method to wean the Jewish people away from such idol worship.

This is all very interesting philosophy of science and intellectual history (Funkenstein goes on to sketch the various reactions to this Maimonidean hermeneutic principle, focusing on those who condemned Maimonides for relativizing the truths of the bible). But the major upshot for my more parochial interests is the connection between these debates and later conceptions of the nature of positive law.

Thomas Aquinas, for example, partly embraces Maimonides' method, both as a matter of interpreting the Old Law, as well as a method of understanding the distinction between general precepts of reason derived from the natural law, and the particular instantiations/institutions of positive law and divine law.

The ceremonial and judicial precepts of the Old Law were not rationally necessary in their particular content, but rather in their general purpose. The nature of law permitted a space for contingency with an eye toward guiding the Jewish people in their particular situation. (This is not so, of course, for the moral law precepts of the Old Testament, which are perfectly rational in themselves, and which are accordingly always binding).

As it relates to the distinction between natural and positive law, this indeterminacy in the essence of law proves quite useful to Aquinas. It allows him to make sense of the institution of private property, for example. Private property derives from the natural law itself--it is natural for man to own property. But against a Lockean natural-law theory of property, this natural-law precept remains thoroughly under-specified. It is natural that man have some form of private property for the sake of their own private development, but more importantly for the sake of the common good. (Also, if theft is a violation of the natural law, it seems necessary that some kind of ownership is required by the natural law).

Two important implications fall out of this account of the natural-law right to property. First, because the natural right to property is ultimately oriented towards the common good, whenever any positive-law right to property runs contrary to the common good, it ceases to obtain. This is the reasoning behind Aquinas' famous argument that theft for the sake of survival is, strictly speaking, not theft at all: "It is not theft, properly speaking, to take secretly and use another's property in a case of extreme need: because that which he takes for the support of his life becomes his own property by reason of that need."

And second, this account allows for extensive discretion in the positive-law imposition of private property rights. Here's Aquinas on the general principle:

But it must be noted that something may be derived from the natural law in two ways: first, as a conclusion from premises, secondly, by way of determination of certain generalities. The first way is like to that by which, in sciences, demonstrated conclusions are drawn from the principles: while the second mode is likened to that whereby, in the arts, general forms are particularized as to details: thus the craftsman needs to determine the general form of a house to some particular shape. Some things are therefore derived from the general principles of the natural law, by way of conclusions; e.g. that "one must not kill" may be derived as a conclusion from the principle that "one should do harm to no man": while some are derived therefrom by way of determination; e.g. the law of nature has it that the evil-doer should be punished; but that he be punished in this or that way, is a determination of the law of nature.

The particular determination of the form private property should take is left to the free discretion of sovereign authorities. (Notice the similarity in this metaphor of the craftsman and the house with Funkenstein's example of the table. I'm fairly confident the craftsman/house metaphor comes from Aristotle, but I'm not sure).

Anyway, this is a long way of noticing something interesting about law for Aquinas and Maimonides: The essential room for free discretion. This is an echo, in part, of the ancient principle that law is always second best, precisely because free discretionary judgment will always be necessary. Consider, for example, the Eleatic Visitor in Plato's Statesman:

Now in a certain sense it is clear that the art of the legislator belongs to that of the king; but the best thing is not that the laws should prevail, but rather the kingly man who possesses wisdom ... [This is because] law could never accurately embrace what is best and most just for all at the same time, and so prescribe what is best. For the dissimilarities between human beings and their actions, and the fact that practically nothing in humana ffairs ever remains stable, prevent any sort of expertise whatsoever from making any simple decision in any sphere that covers all cases and will last for all time. (294a-b in the C.J. Rowe translation).

Something similar is true of Aristotle's discussion of the relationship between law and convention in his treatment of justice in the Nicomachean Ethics. (Is justice like money, different from society to society, or is justice like smoke, which no matter where you are flows upward from fire in the same way?)

Also worth noting here that there's a kind of double application of this principle of indeterminacy-in-law for Aquinas: (1) There is discretion in establishing human laws to instantiate requirements of the natural law; and (2) There is discretion in the application of the human law in the interest of promoting the common good. This second caveat derives from the fact that positive laws exist for generalities, not particulars, but that particular circumstances may derive a departure from the strict letter of the law. The famous example:

For instance, suppose that in a besieged city it be an established law that the gates of the city are to be kept closed, this is good for public welfare as a general rule: but, it were to happen that the enemy are in pursuit of certain citizens, who are defenders of the city, it would be a great loss to the city, if the gates were not opened to them: and so in that case the gates ought to be opened, contrary to the letter of the law, in order to maintain the common weal, which the lawgiver had in view.

It's striking just how different all this is from the characteristically modern view of the rule-of-law (as opposed to the rule-of-men). We've already seen how Aquinas' natural-law right to property is radically unspecified compared to Locke's. The former view reserves extensive discretion to the political authorities in instituting property rights in accord with the common good. Locke, on the other hand, believes that the natural-right to private property establishes what Nozick called "side constraints" on authority.

A similar difference can be found with Hume. Unlike Locke and Aquinas, Hume thought property rights derived from convention/construction, not nature. Yet despite their artificial character, laws of justice are extraordinarily inflexible! (See my earlier post on this).