Memorable Moments in the Garden

My late Professor, Leo Strauss, insisted that there was, in the Bible, no distinct teaching about “nature” and any rights that arise from nature.  Nor did he find the presence of “natural law,” or a moral reasoning that could give access to moral truth apart from “revelation.”

But central to Judaism was the covenant between God and Abraham. And yet there is only one kind of creature who has, by nature, the capacity to reckon the good to be done in any contract, to give a promise or make a commitment, and then honor that commitment even when it is no longer in accord with his interests or inclinations.

As for the  moral reasoning of the natural law, the telling incident was provided by Abraham negotiating with God over Sodom and Gomorrah:  “Should not the Judge of all the universe do right?”   Would He really destroy the righteous with the wicked?

If all moral understanding flowed from revelation alone, was Abraham suggesting that God had not quite grasped the implications of His own revelation?  Or was he appealing to a set of principles or moral truths that even God would respect,  and which He had made his own?

That understanding of the Covenant was central to the meaning of Judaism and a Jewish people.  Jesus, at the Last Supper, offered a newer covenant, but as Joseph Weiler has observed, the notion of a covenant has remained central to Christians, as well as Jews – and to the understanding of God.

A covenant or a contract implies two or more parties equally competent to contract. There may be vast disparities in power and character, but the question is whether men, as God created them, had the capacity to gauge the “good” they could gain from this agreement; whether they were tendering then a knowing “consent”;  and whether they could be held responsible for honoring their commitment, keeping their promise.

The scheme had to imply then that God had before Him those creatures he had constituted as “moral agents.”   Their conduct was not “determined” by forces outside their control.  They had the freedom then to make choices – and be held responsible for their choices.

God “proposed” a covenant, and He was dealing with beings who had the freedom to accept or turn away from it.  Without that central point, as Weiler says, God would have no more interest in this covenant than He would in a covenant with dogs and horses.  For He would not be dealing then with human beings in all their fullness.  He would not keep them from drifting into mistakes or evils, for He didn’t wish to create an earth full of robots.


Weiler had confronted the leaders of the emerging European Union with the need to make their own, inescapable choice about God.  He had become, already, the most accomplished scholar of international and comparative law.  He had sprung from South Africa, from a 500-year line of rabbis;  he did his graduate work at Cambridge and the Hague and the European University Institute in Florence.  His books have been translated into multiple languages.

As a consultant to the Convention for the Future of Europe, he won the hearts of so many of us:  Weiler, an Orthodox Jew, led the opposition to the move to purge mention of the Christian tradition from the constitution of the European Union. To purge that moral history promised no good for Jews or Christians – or anyone else.

What he heard in response was that a move of that kind would undermine the “secular” character of the Union, with its “neutrality” on religion.  And yet, what was being undermined?  As Weiler pointed out, freedom of worship prevailed even in European countries with established churches (such as England and Denmark).

But then the piercing question, which he put to the President of the Convention: Why should laicism be the default position? Half the people in  Europe live in States whose constitutions make explicit reference to God, so why should that not be the default position?

Weiler argued then that neutrality was a false and impossible position. The choice here, he said, was binary:  “yes to God or no to God. Why is excluding God any more neutral than including God?  It is the favoring of one worldview, secularism, over another worldview, religiosity, but [a secularism] masquerading as neutrality.”

In a recent gathering, Weiler returned to his insistence on the centrality of that “moral agent” making a Covenant. But if Eve and Adam had known nothing of good or evil before they had taken of that tree, how could it have been plausible to hold them culpable – and to punish them?

Here Weiler offered a strikingly different angle: The reaching out for the apple “impels [Eve] to her full human vocation – to live and self-understand herself as a moral agent. . .to complete her creation in the image of God.”

From that angle, what has been seen as the Fall of Adam and Eve could be described anew as the Ascent.  And the punishments could be cast in a notably different light:  “Sorrow is a necessity if we are to appreciate joy. . .death is that which enables us to appreciate life,” as a gift of God. If we were programmed never to do wicked things, we could never reach the heights of knowing and loving the “good.”

As our late beloved Michael Novak used to say, this is “a church of the sinners, by the sinners and for the sinners.”  Henry James recalled a Sunday in Rome at St. Peter’s, listening to music, taking in the scene, and he remarked that “the bright immensity of the place protected conversation and even gossip. It struck one not as a particular temple, but as formed by the very walls of a faith that had no small pruderies to enforce.”


*Image: Sacrifice of Isaac by Caravaggio, c. 1603 [Uffizi Gallery, Florence, Italy]

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. He is the author of Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is available for download. His new book is Mere Natural Law: Originalism and the Anchoring Truths of the Constitution.