What Is the Islamic Law?

Richard Reinsch:
Welcome to Liberty Law Talk. Today we’re talking with long-time Law & Liberty contributor Graham McAleer about the natural law. He’s the author of a new book, called Erich Przywara and Postmodern Natural Law. We’ll talk about who that thinker is and also postmodern natural law in this discussion.

Graham has contributed dozens of pieces to Law & Liberty over the past few years on the ethics of fashion. He’s written on burkinis, he’s written on offshore trusts and family values, the Scottish Enlightenment. He’s explored the nature of classical liberalism, and defended it on the site. And has also written on numerous thinkers that you wouldn’t necessarily think could be conservative or have a classical liberal connection, like Lacan. But Graham’s done it and he’s done it very well.

Glad to have you for the first time on Liberty Law Talk.

Graham McAleer:
Great. Thank you, Richard. Thank you so much.

Richard Reinsch:
And our listeners, I know many of them have thought about and read about natural law. In the title, as I said, Erich Przywara and Postmodern Natural Law, what is postmodern natural law?

Graham McAleer:
Well, if we begin with postmodern, so postmodernism more or less grows up in the 1960s. It’s incubating before that, but it’s a reaction to the failing, it’s a very much a European, originally a European movement reacting to the failings of the European ideas. Obviously, not only with Nazis, but with the communists. So many people on left and right, have the sense that not all is well with the world. Not all is well with modernity and, most glaringly, the promise of the Enlightenment, right? The Enlightenment was supposed to make us more calm, more generous, more thoughtful. But the 20th century was a certain kind of repudiation of that idea.

So postmodernism begins more or less in the 60s, and is a whole bunch of things, especially in France. They’re trying to work out what went wrong and what the future might look like. But at the same time, they’re not nostalgic. They’re not believers. They don’t want to go back to the middle ages. They’re not Christian, so they want, without a return to God, they want to try to find what is still good about the human being after the atrocities of the 20th century.

So postmodernism, it’s a whole bunch of different thinkers. It sometimes gets very complex, sometimes they’re very interested in psychoanalysis, sometimes in the nature of language. But it all sort of boils down to an effort to try to think about how to have good communities, good politics, in the light of what happened in the 20th century.

Richard Reinsch:
But now postmodern natural law, because it is an interesting idea, I think of another close friend of mine who passed away, Peter Lawler in 2017, who had this idea of postmodern conservatism. Peter’s idea was that postmodernism signaled the end of the modern world and all of its aspirations and hopes of making us at home within the world and that its techniques and concepts had failed, as you’ve articulated. And that conservatism or the ability to look back to the full breadth of the humanistic tradition, including religion in the West, was needed. So your idea of postmodern natural law, I guess let’s talk about how does that alter natural law and maybe we need just a baseline. Natural law itself is very complex and rich. But maybe talk more about that.

Graham McAleer:
So natural law, it’s primarily associated with St. Thomas Aquinas in the high Middle Ages. He died around 1274, he taught primarily in Paris. So it’s a kind of a culmination. It had been a long time gestating, but it was culminating in the high Middle Ages. The idea of natural law is that the law is in its rudiments trans-political. So it was an effort not to get caught up in national passion. Now, from Thomas Aquinas you can see, of course, he’s a priest, he’s a monk. He, of course, favored the Catholic Church, and the Catholic Church, of course, was in a struggle with the Holy Roman Emperor, with national kings. It was all about power, assertions of power. So natural law came to be this idea about how to think about the law in isolation simply from national passion.

Then later on, the natural world became very important with the Age of Discovery. When the Europeans started to move out into the world, they encountered radically different kinds of lifestyles, politics, and this really sends through the shock waves. So then it became natural law was a way to have a communication among very different people when important things were at stake. Not only things like property, but things like human sacrifice.

So natural law was an effort to think about what is it that humans are obligated to living in common, but also to try to generate a great deal of flexibility. To take seriously the idea of different geographical, cultural, historical dispositions.

My own idea of the postmodern, and a little bit maybe like Lawler, was to then try to think about, well, how to update an idea that when most people think of natural law, they think of something very medieval, very old-fashioned. They think of it as very constraining. They think of it as very, to use a word from this guy Przywara that I’m interested in, very univocal. That it’s one size fits all.

That’s often the worry in the modern legal academy of natural law is its extremely dogmatic and tending toward some sort of tyranny. But there’s a way, I think, to think about natural law. Natural law concerns our basic appetites and it posits this idea. Aquinas says there are four things basically going on with humans. We want to preserve our existence. We want to continue in existence. We want to have family. We want to enjoy society.

And then there is also the problem of God, that there are no civilizations that haven’t grown up in and around the problem of God, the afterlife. If you even look at the most early human burial sites that we have, dating back 35,000- 40,000 years ago, people are buried with grave goods, with beautiful ornamented spears, necklaces. So there’s something weird about us, says Aquinas, right? That there’s always this problem of God that has to be confronted.

Those are the basic dynamics of the human being and those need to be articulated more, and they are, if you just think about what is it that legislatures dwell on. Well, they dwell on problems of self-care, how to raise children, how to protect children, what are the conditions for good human community, how to avoid hatred. Of course, but maybe more controversially, the problem of God is always do you exclude God, do you include God? How do you keep God contained in some way or do you become a kind of theocratic Iran?

I mean, Aquinas, I think, is quite astute when he thinks about what is it that politics is about. It appears to revolve around these four basic dynamics.

Richard Reinsch:
Because you said we want to preserve our existence. I’m thinking about the modern West. Is there any country in what we would think is in the modern West that even has a reproduction birth rate above or even with what’s called a stable population rate rather than a declining rate or an increasing population rate? I don’t think there is.

What do you think of that?

You say in the first chapter that natural law can remedy our failing humanism. Is that evidence of a failing humanism that we need to remedy?

Graham McAleer:
I mean, as you probably know, there’s certain European states which are offering tax incentives to have children. France, famously is doing this because rates are becoming very low, right? Which if you’re not replicating, you don’t actually have a good, dynamic economy.

So you see those arguing about why Japan is so advanced on robotics is that they have one of the worst birth rates on the planet. Indeed there are these, and I’m no expert on Japan, but you see these reports where there’s huge numbers of young adults who have never even been on a date with somebody of the opposite sex, right? There seems to be this weird, almost death spiral fascination that’s going on. But natural law would say, well, look, the law here can be a remedy. So if the law insists that you do need to replicate and even Darwinism would be making this argument, then actually you can do things around the nature of law that’s going to encourage it.

Now, because, of course, can nations go off the boil, so to speak? Can they depart? This is kind of what happened with the Age of Discovery, right? The Europeans go out and they discover cultures which seem so very different, so seemingly strange. So the idea was to try to find all of these underlying dynamics that
I mean, could one correct a culture? Could one correct a civilization? It’s actually pretty interesting. People like Francisco di Vitoria, who was a Thomist around the 1500s, he was the first person to articulate the idea of regime change on the basis of natural law. He said you could meet a population that was so departed from natural law that for their own good, you could actually change their rulers.

This actually is an argument that he had for the Spanish defeating the Aztecs. Now, of course, there’s all sorts of controversies and historical problems with that.

But the idea that nations can go off the rails, well, we know their records. We know that’s what happened also in the 20th century. So natural law in this case then, would be a kind of an educational model in some sense, a way to help us get back to what is the highest good of a human being.

Richard Reinsch:
Thinking about this failing humanism problem. Is the failing humanism that we don’t actually take ourselves seriously as embodied creatures? Or take nature seriously? You have a interesting discussion about metaphysics and decapitation. It makes me wonder, is it the case that late-modern man or post-modern man or however you want to characterize this, that we don’t, in fact, take nature seriously?

I mean, we’re all about the environment and nature and all that. I understand. But that we don’t think through the complexity of who we are as human beings, because I think that you think we’re kind of lost in that regard. Maybe that’s a reason why we have birth rates of 1.2, and are, as Pierre Manent would say, post-familial, post-religious, and post-political.

Graham McAleer:
I would say that we, and I do get from this Jesuit theologian, Erich Przywara, we also struggle between thinking of ourselves as mere bodies and at other times as angels. So it’s extremely common. In fact, one even might say a standard person deeply interested in environmentalism is also somebody who wants a radical assertion of their own autonomy.

So on the one hand, the very same person who’s deeply interested in environmental stewardship might also be a big, big fan of trangenderism, which seems to be a contradiction. That a deep respect for the nature that we are gifted with versus then a sort of radical assertion of autonomy and technological transformation. This would be what I call decapitation. Sometimes we think of ourselves as angels.

Richard Reinsch:
Would another instance of that be the same people will tell you, “I’m an autonomous individual with natural rights, or I have so many rights, rights everywhere. But I’m fully explainable by evolution.”

I’m a materialistic being. That’s who I am, a clever animal. That’s it, and then not really thinking through how does that all work.

Graham McAleer: 

And that’s the other side of it, right? So you hear all the time people say that you shouldn’t go around repressing. What’s the problem with morality? What’s the problem with moral earnestness? Well, it’s just a repression of the powerful desires that you had better let release, otherwise you’ll become perverted and twisted. It’s a kind of a classic argument against the Catholic priesthood, that it’s ignoring this radical vitalism. So sometimes we’re these angel beings and sometimes we’re these thoroughly materialistic beings. The weird thing is, says Przywara, is that we flit rapidly between the two. So we’re not consistently one or the other. This then leads to this idea of mistaking what’s in the middle, this idea that we are bodies that can be articulated through civilization or values.

Richard Reinsch:
So the body is, I guess, maybe help us understand the unifying aspect there. That would help us make sense of this wild metaphysical … How should we approach that?

Graham McAleer:
Well, so in a classical, Aristotelian ethics, you have your desires and you need the virtues. You need the virtues to perfect your desires. For example, the problem of fear. Fear is natural enough. But there’s a right time to be fearful and there’s a wrong time to be fearful. You can overly compensate by becoming reckless. This is highly dangerous, both to yourself and to people around you. Or, of course, you can sort of undercook it and you can indeed exhibit a kind of cowardice when, in fact, you need to be strong for others. This is, for example, very frequent, we found, in the problem of parenting. Sometimes you have to be the strong one to say to the family, to a child, “Look, this just is not okay. This is going to be damaging.” A lot a parents, obviously, and especially in a more liberal society, can often evade those responsibilities.

So we have this idea, inherited at least from Aristotle and also found in natural law, that we need a rational, virtuous articulation of our appetites and our bodily inclinations. Inclinations for food, safety, security, et cetera.

In the book, I talk about this strange idea we find with our relationship to the embryo. On the one hand, the embryo is seen as a source of great medical potential. But on the other hand, it’s seen as something that we can be completely cavalier about. So we have this weird, schizophrenic relationship to early life. Sometimes it’s the most valuable thing in the world, so you think about all the parties celebrating the pregnancy. And sometimes it’s a thing most casually cast off and put into laboratories and spliced and diced. So sometimes the baby is sort of angelic and sometimes it’s a kind of resource. That’s even the way that people often think about their own children. The way they think about the way that sometimes parents will foster a certain kind of attitude in their children, which is that demanding of them is just far too much.

We kind of ricochet between these two options of what Przywara calls vitalism on the one hand, connected with the body, and angelism, connected with the mind. But what you need to do is somehow try to hold the two in tension.

Richard Reinsch:
On that analogy, you have this idea, liturgy of morals and value tones as well. I want to talk about that through this great example you give, which I think our listeners will enjoy, of James Bond. How does James Bond help us understand those concepts and explicate for us post-modern natural law?

Graham McAleer:
Yeah, so Bond, I think, is an interesting phenomenon. On the one hand, it is a huge marketing, economic business. And if we think a little bit about, well, what is James Bond? Well, he’s a kind of powerful human physique wedded to very strong sense of justice, care of the other. Of course, this is then fed through ideas of the British establishment. He is for Queen and country. But this is the thing that I was interested in, was trying to find examples where the body is linked to establishment, where the body is linked to civilizational values. You see this, right? You see this with the way that Bond dresses, his interest in clothes, his interest in sports, his interest in cars, and, of course, his interest in games.

So one of the ideas that I had was to try to think about how the natural law is linked to games and the liturgies in games. On the one hand, you hear people say, “Look, cultural relativism goes all the way down. Humans are just radically different from one another by history and by civilization.” This isn’t quite true, because one of the assured things, you go anywhere in the world and you throw a ball and humans will run after it. All culture, bizarrely, have games connected with humans running after a ball. What’s going on there?

Well, what’s interesting about that, actually, is that not only do we run after balls, but we generate rituals and we generate rules. And we generate referees and umpires to navigate the rule and to determine when something was out of bounds, when someone stepped over the line.

So what you see, actually, is that our moral vocabulary is linked profoundly to the idea of playing games, the idea of a playing field. You can look at all manner of establishment venues and could see this idea. So you’ve got various rules of etiquette at the law court, Parliament and so on.

So I was interested in Bond as a figure of someone who is very playful, but who serves the establishment, who serves justice, who serves law. Then to think a little bit about, well, what were the values that he was literally bringing to bear. These have something to do with fashion, style, glamor. This is why I’ve always been interested in the Scottish Enlightenment and Adam Smith and the idea of economics as driven by luxury. It seems to me again not only do humans immediately run after a ball no matter where they are in the world, actually, what we’ve learned over the last 200 years at least, is that we also run after luxury. So I think-

Richard Reinsch:
It’s expensive shiny objects. We like that.

Graham McAleer:
Right. So what Adam Smith calls toys of frivolous utility. Actually, the utility goes quite far down. But his point was that our interest in luxury is not primarily about utility. It’s about the playfulness, it’s about the ritual, it’s about these sorts … the ritual.

I used to hear this all the time on the internet. So if somebody’s interested in Louis Vuitton bags, like all these videos, especially of women but not just women, unpacking the Louis Vuitton box that came in the post. These boxes, they’re orange and you open up the box and inside they’re in a cloth envelope. You open up the envelope, and then you open up the bag and you show what’s in the bag.

So these are rituals around things that are beautiful. What’s going on about those videos is, these YouTube videos, is they get millions of views. So what’s going on there? Something profound about our nature is going on.

Richard Reinsch:
Help us understand that. This idea, liturgy, morals have to be a liturgy. What do you mean by that?

Graham McAleer:
Yeah, well, so there’s a lot of moral theories that are, they’re mathematical or extremely austere. So a very mathematical moral theory’s, of course, utilitarianism, the greatest happiness of the greatest number. Right? It even sounds like a mathematical composition.

Another very popular one is Kantianism and Kant says that you and I must obey the moral law, and we can only obey the moral law if we are extremely pure. If it is purely the moral law that determines our action and not our culture, not our historical condition, not our private appetites, not privilege in certain people, you must obey the austerity of the law. So you have these extremely abstract, almost mathematical, purity kind of moral laws.

Another way to think about ethics, which is, I think, through liturgy, through … I say liturgy. I mean it quite boldly. I mean the kind of liturgies that you see at sports games. So sports games, people dress up in the colors of their team. They go to a particular playing field. Some of these playing fields are very sacred, right? There are even playing fields in England around soccer teams where one can be buried under the grass, right? So it becomes sort of a burial ground. You sing songs. There are collective gestures when your side scores a goal. You act one way when you miss the goal. You act another way. So you have these gestures. It seems to me that our ethics can actually be built around these rituals, rather than these more abstract principles of purity.

Richard Reinsch:
So what we need is, we need more institutions. We just had Yuval Levin on the show. That’s his whole book, we need more institutions. We need more forms. Procedures, things like that. So democratic society from one view tears these things down because we want to be liberated from them. We want to be … I got to be me, is the cry. But what you’re calling for we actually need something like the rules of a courtroom, or of a Parliament, or even a workplace in a way. A workplace has a lot of written and unwritten rules of how you should conduct yourself. Yeah, we need those, is that what you’re saying? To act moral.

Graham McAleer:
Yeah. On the one hand you’re absolutely correct. There is a certain movement today that we need to get rid of our institutions. Now, of course, then there’s another movement which is oh, no, we need more of them. So we need to go between the two poles, which would be more Erich Przywara, of course, the analogical position.

We need the ritual. These rituals are publicly enacted. But again, to go back to sports. The point about sports would be that these sports associations are what Burke would call these middle institutions, where people gather. They gather under their own terms, through their own proclivities, through their own interests. We don’t need them micromanaged by the state. Humans are quite clever at coming together in association that is not only healthy in a way, but actually it enacts rules. So the rules of the golf club, the rules of the tennis court, all of these rules make us more law abiding. One of the things I wanted to argue was that rule of law is actually embedded in our play structures, in our rituals of games.

Richard Reinsch:  

How about another thing? Related question, I think. Natural law and value tones. Can you talk about that some, because that’s also an interesting idea.

Graham McAleer:
Yeah, so in the 20th century, but I think you can find this in Adam Smith actually, but in the 20th century, you had what was called “value theory.” It began in Germany. It linked to a philosopher I know you yourself quite like, Aurel Kolnai. Value theory is the idea that there are categories of values and we are extremely alert to them. These values come in a hierarchy, so you have values of utility. We have a cell phone because it enables us to be in communication with the world, so it has utility.

There are values of vitality, physical exercise. In keeping with these cell phone idea, we also show vitality in the pictures that we share and videos that we watch. So something like the app TikTok is a good example of this vitality connected with a cell phone. Then there are intellectual and scientific values, which, of course, are linked to all sorts of questions of design. You find this in the iPhone. Then there are values of the person and the divine.

The idea of at the top of the value hierarchy is a fundamental regard for personhood. This again, it seems to me, the idea where people think of their cell phones, and especially young people, students that I teach, think of their cell phones as an extension of their personhood. So there is a hierarchy of values and there are thousands of values contained in each and every one of these categories. Let’s just take an example: Perfume. There’s a vast industry. Chanel 5 is a vast industry connected with perfume. Well, what is a perfume? Well, it’s a set of value tone. It’s a set of distinct scent.

So somebody could walk up to someone who was wearing a certain kind of a perfume and say, “Oh, I really love this citrus scent in that perfume. What it is? Please can you tell me about?” So you and I actually are extremely good at understanding these value tones and at every level. We’re very good at picking up on what’s useful. We’ve very good at picking up on what is vital, like things that smell good, things that smell bad. We’re very good at picking up on design and scientific ideas. Then, what we hope, of course–this is a hard one in some sense–we hope we’re also very good at affirming human personhood.

So this idea of value ethics became very dominant in the 20th century, and it was seen as a corrective of the mathematization of ethics that you found in utilitarianism. Which would link to Jeremy Bentham in England in the late 18th century and with Kantianism in the 19th century.

What I wanted to do was then try to link what I saw in Thomas Aquinas about these basic inclinations and value theory. My linkage was really to kind of dwell on this idea of games and plays and rituals. Because I think, again, we see these value tones in the various kinds of games, the way that we dress up for them, the songs that we sing, et cetera.

Richard Reinsch:
Most people would respond and think, “Well, that’s consumerism. This is a lot of stuff.” I mean, a lot of what they think about the fashion or a lot of things that people purchase in sports itself. Your fascination with sports is some substitute for something you should be doing.

Graham McAleer:
Well, I think consumerism, critique of consumerism, which one hears all the time. Obviously, with Pope Francis in particular these days when he voices it. But actually, if you think about what’s going on, I mean, the purchase of, say, a Louis Vuitton bag. Actually, what there is there is a deference to the values of craft, the values of inheritance, the values of long tuition, learning how to build something from these materials in a way that is beautiful, supple, also useful.

So it seems to me that consumerism, one can look at consumerism rather superficially. But there is, I think, in a fascination with these objects of high design, there is, in fact, a deference to these value tones. That we all understand what’s fascinating about a Lamborghini car. Well, what’s fascinating about that is its industrial complexity. And this is then something that does, in fact … I say consumerism would be an idea, look, this makes people completely superficial, just all about the pleasures. But in fact, it really isn’t. If I may, let me give an example.

… I love from Shaftesbury, an Englishman, but he was very important in the Scottish Enlightenment. Shaftesbury gives this example of the man who has a hawk to go hunting with, but the man over time falls in love with the hawk and he puts the hawk on a pedestal and he feeds the hawk and he just sits looking at the hawk. It’s so beautiful. Well, we sort of do this in the way in which those of us who are fascinated by collections, whether collections of handbags, or cars, or pipes. There is a certain kind of value world that encloses itself upon us and helps actually make us better. So people who love, just keeps going on about a Louis Vuitton bag, they also look after it, right?

They cherish it in certain ways. They follow certain rules about how to care for it. This is also a bit like the sports idea as well, that we actually do learn about ideas of fair play, not breaking the rules. Although we also, and I point this out in the book, we also have ways that people can play tricks in games, but there are penalties. One accepts the penalty. So we see this both deference to these values, which enclose themselves upon us, these things that are higher than us, they’re structuring us, which is very much like the natural law. It also teaches about ethics and morality.

Richard Reinsch:
So maybe the signal that you’re overindulging would be you’re running up a high debt to buy all these items. Maybe that’s a signal. Would that be part of the liturgy of morals?

Graham McAleer:
The overindulging part, you mean?

Richard Reinsch:
So what would be the sign that you’re overindulging? Yeah, it would be consumer debt, you’re racking up consumer debt. Maybe that’s part of the liturgy of morals here.

Graham McAleer:
Certainly. There can be fake things there. Right? Because certain people know people have these desires and even though they’re not in a position to actually purchase the real things, they’ll purchase the cheaper version. So abuse. But it’s true of all ethics, right? All ethics has to deal with certain excesses. So I do grant that you can have bad games. Even you see this in James Bond movies, that the baddies play certain kind of bad games, and Bond has to play the game and somehow find a way to reassert the decency and the goodness in the doing of the game.

I mean that obviously there is something there, but I still think that game structures are a useful way to think about how to structure our appetites towards community, towards ideas of fair play.

Richard Reinsch:
As I’m listening to you, I’m thinking of the liturgy of morals and the value tones. Before we got online, you and I were talking about the recent British election, where the conservatives scored a resounding victory that no one predicted. I’m thinking is this part of it? The British public grew tired of watching the rules being flouted, if not interpreted in weird ways to sort of privilege one side. I think in particular of the Speaker of the House, John Bercow, who seemed to be putting his thumb on the rules. And the way the debate was flowing or not flowing and people were tired of it. People wanted the rules.

Graham McAleer:
I think probably what’s happening over in England in the last few years is a conflict of two different kinds of games, with the games played in Parliament and, of course, with the, as you know, the Prime Minister’s question time. The idea is to turn the opposition into the pantomime villain and they go into jeering and laughing. There’s an extremely strong play structure built inside the procedures of Parliament and Congress.

But there’d been another game that had been played, the game of a democratic election. This is also a game. Gamesmanship is part of it. So this is the bit when the politician takes off his or her jacket, rolls up their sleeves and starts holding the babies and kissing the babies, right? There’s a kind of a playfulness in what it means to go on the hustings and to speak in public and the rituals of rhetoric that go with that.

For that game, which was somehow perceived in England as a kind of … The election was a kind of a more primordial game in a way, where the whole people had come together and had played a game, the election. And then there was this sense, well, there’s this other kind of a game going on and this other kind of a game seems to want to subvert this more primordial game that we all just engaged in. I think what happened, I mean, one way to explain the astonishing result that happened just before Christmas, was that there was a kind of a deep sensibility in England that the original game that had been played, the election, was the one that absolutely must be respected.

So you had people who were wanting to stay in the European Union who nonetheless voted conservative, because they felt, well, we had an election and that needs to be respected and Parliament is sort of playing around, but in a negative sense, right? The negative sense of playing around: They’re playing me for a fool. So it seems to me there was a conflict of two different kinds of games, two different kinds of rituals that had to be resolved there.

Richard Reinsch:
Things were so bad, as it was in the press, that the Queen was astonished at the dysfunctionality of the British political class, which I assume that somebody wanted that to come out, which is interesting, the sort of underscoring that the rules not being followed or understood.

I think I want to end the discussion thinking about law specifically. You said in the introduction that two conceptions of law are both wrong. One is the conception of law in Islam where it’s just divine will. But then also, more familiar to us, in the Enlightenment understanding of law. The Enlightenment perspective, it’s just human will. It’s just we understand it, we can run out its content in human rationality. Talk about why you think, under your conception of natural law, those are both equally wrong in different ways.

Graham McAleer:
Yeah, so in the Islamic conception, the law comes directly from God. So the ways that humans over the centuries have organized themselves, their customs, their rituals, their games, their forms of worship, the clothes that they wear, all of these things have to be put through a kind of a grinder, the grinder of divine law.

So you see this in the most extreme version, of course. Of course this is an extreme version. I’m not saying this is what Islam is. But in the extreme version of ISIS, when they engage in radical cultural destruction, that nothing even of the past may interfere with this deference to the demands of the law of God.

Then on the flip side, in the European Enlightenment, American side, we have this idea that the law should just reflect whatever our current passions are. So this idea of the evolving Constitution or of this idea of the evolving natural law. But this idea that our national passions, nothing may stand in the way of those. This is a kind of a presentism. This is about our national passions today. Who we are today will determine the kind of law we have tomorrow. Natural law sets its face against that.

Against Islam, natural law says, look, we have all these customary ways that have arisen out of the way that we deal with our basic inclinations. These need to be respected. And in the Christian tradition of natural law, they are respected. Divine law is a very particular, finite part of law, actually of what the law is. There’s also human law connected with institutions and judiciaries and then there’s the natural law, the basic inclinations.

But [there’s also] the Enlightenment idea, that the people of today are more enlightened than the people of yesterday, and therefore we don’t need to respect the legacies of the nation. Consider Edmund Burke, who thought that the establishment that we had inherited was to be preserved, precisely because it picked up on an important idea that humans are an historical people. We have our heritage and we will also have a future, so you need reform, but you also have a legacy and this legacy also had deep, abiding value.

So natural law is wanting to sort of insist that there a kind of abiding center of moral orientation. But it also wants to be quite supple to take on changes, obviously changes in technology, changes in economic order. But the Enlightenment gets that wrong as well, because it’s far too rational.

It thinks we should just think about what was so bad about communism. Well, communism was an idea, a kind of a geometrics of human control in which economic planning would determine the wholesale movement of entire peoples.

Richard Reinsch:
One particular application of your idea in the Enlightenment would be the, and I don’t think it’s nearly as dominant as it once was in the academy, but John Rawls’ idea. Which is clearly in the America legal academy that the law and the reasons for law must be purely secular and had this ability to build overlapping consensus, which is the insistence on public reason, secular reasons for law. Your conception of natural law would say to him that you’re simplifying law to a great degree and not admitting that there’s a ground for law, I think, that’s not just reason. Or am I wrong?

Graham McAleer:
No, that’s right. I mean, toward the end of the book I talk about Rawls. And Rawls has this, as some people listening know, this very cool and strange and interesting thought experiment, where you go behind this veil and he says you have to strip yourself down, essentially. He doesn’t say this, but you have to almost think of yourself as an angel, a being without a body.

Richard Reinsch:
With no interests.

Graham McAleer:
And you go behind a veil. You’re just this sort of atom with no deep inclinations at all, no preferences at all. You then kind of work out, well, once I come from the veil and I enter the world, what do I want the world to look like? What do I need for the world to be?

I think a natural law theorist would think that Rawls’ starting point is extremely strange. Now, you see its heritage, of course, in Kant and the idea of this kind of approach of purity to the law. But, of course, we’re not pure in that sense. We come with inclinations. This is a deep insight of natural law. We come with a set of inclinations and we need to work on those inclinations. So the Rawlsian idea that we could remake ourselves, I think is based upon what Przywara would call an angel or … We can’t totally remake ourselves, because we can’t ignore the fact that we are these very complex animals with a past, with our genetic inheritance.

But also we, for whatever reason and as we even see in burial sites, we have this idea of some sort of afterlife, some sort of continuity beyond this world.

That’s the theologico-political problem, the problem of the divine, that’s going to have to be resolved somehow inside of politics. So, again, it seems to me, this is what Rawls completely ignores, because he does want things so secular. He’s sort of tied to this idea that the religious is always inherently destabilizing, violent. I mean, I think he’s got a kind of a caricature of what the development of religions has been like.

So it seems to me natural laws are really useful ways to take seriously what it means to be a human animal and fundamental appetites that repeat in all cultures. Again, I took the idea of games and values as a way to see that we do seemingly, no matter where we are in a civilization, we do seem to want to play certain kinds of games and we do want to seemingly want to buy certain kinds of products and these engage, I think, in fundamental values and inclinations.

Richard Reinsch:
Graham McAleer, I think that’s a wonderful place to end. Thank you so much for discussing your book, Erich Przywara and Postmodern Natural Law.