Jerusalem

Or on Religious Power and Judaism

Moses Mendelssohn, Allan Arkush

• Publisher: Brandeis University Press
• Year: 2013
• ISBN:
  9781611685176
• Topic: Scienze sociali
• Subtopic: Sociologia

A classic text of enduring significance, Moses Mendelssohn's Jerusalem (1783) stands as a powerful plea for the separation of church and state and also as the first attempt to present Judaism as a religion eminently compatible with the ideas of the Enlightenment. Allan Arkush's new translation, drawing upon the great strides made by Mendelssohn research in recent decades, does full justice to contemporary insights into the subject while authentically reflecting a distinguished eighteenth-century text. Alexander Altmann's learned introduction opens up the complex structure and background of Mendelssohn's ideas. His detailed commentary, keyed to the text, provides references to literary sources and interpretations of the philosopher's intent.

COMMENTARY

COMMENTARY

33, 1 The Draft has: “Church and state.” Mendelssohn uses the terms “church” and “religion” interchangeably throughout the book, a procedure which was criticized by some reviewers on the grounds that it tended to obscure the character of the church as a corporate entity. Mendelssohn does in fact recognize the institutional character of the church (see his definition, p. 41), but he considers the rights and functions of the church to be ideally determined by the essence of religion.

33, 2–3 State and church are “pillars of social life” insofar as they answer to the needs of human society; see below, p. 40. The (modern) state has a purely secular character; it represents “secular authority” and no longer forms an organic unity with the church as was the case in the Christian state (respublica christiana) of former times. Mendelssohn considers the church too as an organ of society and as subject to the principles of reason and natural law. In so doing he follows the consensus of Protestant ecclesiastical lawyers of the 18th century (Territorialists as well as Collegialists) who regarded the church both legally and historically as a voluntary and equalitarian “association” (societas; coetus); see Schlaich, Kollegialtheorie, Index, s.v. societas.

33, 8–9 Mendelssohn implies that he will endeavor to answer the still unresolved question by a new theory of his own. As he remarks below, the doctrines hitherto proposed are “full of vague and wavering ideas” (p. 34) or untenable even if they are consistent (pp. 35–40: critique of Hobbes and Locke). What he sets out to undertake is an examination of “first principles” which until now had been considered unassailable (pp. 80–81; 83–84). In his polemical treatise Golgatha and Sheblimini! Johann Georg Hamann spoke of the author of “Jerusalem” as “the theorist,” using this term in a pejorative sense (see Hamann, Werke, III, 294; 303).

33, 9–23 The phrase echoes a passage in Israel G. Canz’s Disciplinae morales omnes, §2472, which reads in English translation: “It is, then, a singular concern of the church that the three indeed illustrious rights—those appertaining to the church (iura collegialia), to the state (iura majestatis), and to the conscience (iura conscientiae)—be tempered in such a way that certain limits subsist between them and that the boundaries circumscribing them be in no manner infringed upon. For immeasurable evils (infinita mala) have arisen from the abuse of these rights of a threefold nature” (emphasis supplied). The last sentence is obviously the one paraphrased by Mendelssohn in the sentence beginning “Immeasurable evils.” Similarly in the Draft (see Appendix): “Border disputes between these [rights] have caused immeasurable evils.” Mendelssohn had excerpted a number of paragraphs from Canz’s work when collecting material for “Jerusalem.”

Mendelssohn’s reference to the “liberty of conscience” also takes its cue from Canz; see §2468. The attempt to find a happy medium between the pretensions of the state and episcopal lust for power has been said to characterize Collegialism (of which Canz was an eminent spokesman); see Schlaich, loc. cit., 134.

34, 11–12 Montesquieu, De l’esprit des lois, V, 14: “Comme le principe du gouvernement despotique est la crainte, le but en est la tranquillité; mais ce n’est point une paix, c’est le silence de ces villes que l’ennemi est près d’occuper.” For a discussion of Montesquieu’s view of despotism as a form of government operating through the motive of fear, see Mendelssohn, GS, IV.2, 290f. Mendelssohn agreed with F. H. Jacobi that a perfectly virtuous character had perhaps the best chance of forming under despotic rule (JubA VI.1, 108; 237), his reason probably being that it was steeled through adversity. He labeled the Roman Catholic Church and the Roman Catholic state despotic because of the Inquisition and the state-abetted canon law concerning heretics (Ketzerrecht). The latter held sway in Germany until the Peace of Augsburg (1555); cf. Martin Heckel, Staat und Kirche, 56–67.

34, 17–30 It seems that by “the early years of the Reformation” Mendelssohn understands the 16th and the first half of the 17th century in which the activity of the “reformers” unfolded and was reflected in the work of the “teachers” (theologians and ecclesiastical lawyers). As for the “striking embarrassment” he mentions, this may refer, in the first place, to the prevalent indecision concerning the theory and practice of excommunication (ius excommunicationis). Its retention by Luther and Calvin amounted to the survival of an essentially papal institution, which was opposed, however, by Zwingli and others. A candid reference to this anomaly Mendelssohn could have found in J. L. Fleischer’s Einleitung zum geistlichen Rechte (“Introduction to Ecclesiastical Law”); see Altmann, Essays, 176. Another source of “embarrassment” which he may have had in mind was the contradictory definitions of the churchly prerogatives of princes. Melanchthon’s doctrine of cura religionis, though designating the prince as “custodian of the law” (custos utriusque tabulae), nevertheless confined his rights to the externals of churchly life; according to his view, only the church (or more precisely, the ecclesia vera of the truly faithful) was authorized to decide on internal matters such as appointing the clergy. On the other hand, the principle of cuius regio, eius religio vindicated full episcopal power to the prince, thereby acknowledging the historical role which the secular arm had played in securing the success of the Reformation. In J. H. Boehmer’s Jus ecclesiasticum Protestantium it was stated that this principle (axioma) dated back to the early period of the Reformers, which meant that there had indeed been a clash of views that could be construed as an “embarrassment.” In reality, the principle referred to was not introduced in the reformatory epoch (which was by no means inclined to compromise) but as late as in Joachim Stephani’s Institutiones iuris canonici (Frankfurt, 1599) where it expresses the episcopal theory of persona duplex: princely and episcopal power are combined in one person; see Johannes Heckel, Cura religionis; Martin Heckel, Staat und Kirche, 80.

34, 30–35, 3 Mendelssohn refers here to textbooks of ecclesiastical law that were written in the second half of the 17th and during the 18th century and reflected the influence of Samuel Pufendorf’s De habitu Religionis Christianae ad vitam civilem (1678) as well as of Christian Thomasius’s polemical treatises, especially his Das Recht evangelischer Fürsten in theologischen Streitigkeiten (“The Right of Protestant Princes in Theological Controversies”) (1669). They all start out from Pufendorf’s characterization of the church as a societas (see the impressive list of works concerned presented by Schlaich, loc. cit., 49–51) but then divide, at times in a rather blurred way, into the two trends of Territorialism and Collegialism, both agreeing in their rejection of the episcopal theory. The chief representatives of Territorialism are Christian Thomasius, Hermann Conring, Caspar Ziegler, and Johann Brunnemann. They are joined, in the Enlightenment phase of the movement, by Justus Henning Boehmer. Their doctrine assigns the ius circa sacra or governance of the church (Kirchenregiment) to the prince as a right inherent in his lordly power as such and not as merely accruing to it by virtue of the de facto transfer of episcopal rights, as had been suggested by the episcopal theory. In consequence, the prince ceases to be a duplex persona. The Old Testament kings (David, Jehosaphat, Hezekiah) and the Christian Roman emperors (Constantine the Great, Theodosius I, Justinian I) are invoked as prototypes of Christian princes in the exercise of governing the church. The Territorialist position adopted the recognition of the ius circa sacra as indigenous to lordship from Hugo Grotius (De Imperio Summarum Potestatum circa Sacra, 1647) and, ultimately, from Thomas Erastus (died 1580); see Johannis Brunnemanni De jure ecclesiastico tractatus posthumus . . . , Francofurti & Lipsiae, 1709, 8; Johannes Heckel, Cura religionis, 290–98; Joseph Lecler, Toleration, II, 308–14.

According to Territorialist doctrine the church can lay no claim to the exercise of power (imperium). Her function is one of service (ministerium). It is not part of the state but only a voluntary association or collegium. It consists solely of teachers and auditors, not of rulers and ruled. It is a society of equals (societas aequalis). Hence it possesses no right of excommunication. Ownership of a power of this kind would make it a state within the state (status in statu, imperium in imperio). In this way a separation of state and church is effected and the road is paved for freedom of conscience. In Thomasius’s words, the noblest of the regalia belonging to a prince in matters of religion (circa sacra) is the prerogative to tolerate dissidents and to protect them against persecution. Thus it is precisely the absolute state, whose sovereignty extends over the church, that becomes the patron saint of liberty of conscience (cf. Mendelssohn’s observations on the toleration enjoyed under the rule of Frederick the Great, below, pp. 78–80). Notwithstanding all this, there is an inner contradiction in the Territorialist doctrine. The assertion of princely power in the realm of the church—the ius circa sacra—ill accords with liberty of conscience, as was noticed by the Collegialist Pfaff. This inner contradiction did not escape Mendelssohn either. Hence his radical rejection of all iura circa sacra, be they claimed by the state or by the church (see below, pp. 83–84). Concerning the early phase of Territorialism see Martin Heckel, Staat und Kirche, 109–27; 241–44; for later (rational) Territorialism, see Schlaich’s article in Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, vol. 84, Canonistic Section, LIII (1967), 269–340, especially 328 (inner contradiction); Idem, Kollegialtheorie, 118–29.

The other doctrine, Collegialism, defended the right of the church as a corporation (collegium; societas) to administer its internal affairs in complete independence from the state, this right being one of directio, not of imperium, and applying to the order of service (ius liturgicum), the appointment of the clergy (ius vocationis), and the collection of funds (ius collectandi). It also claimed the right to expel members that contravened the statutes of the church (ius excommunicationis). It called these rights iura circa sacra collegialia as distinct from the prerogatives of the state (iura majestatis) which extended to churchly matters only insofar as the security of the commonwealth was concerned (ius inspectionis). Notwithstanding this outspoken claim to internal autonomy, the Collegialists were prepared to recognize the princely ius circa sacra—a de facto reality—on the assumption that it had been voluntarily ceded by the church and was being exercised in the name of the church; see Mosheim, Kirchenrecht, 210f.; the inner contradiction of this theory is pointed out by Schlaich, Kollegialtheorie, 37ff.; concerning the Collegialist potestas ecclesiastica, see ibid., 226–31.

In light of the above account, Mendelssohn’s brief remark about the “vagueness” still to be found in the textbooks of ecclesiastical law would seem to be fully justified. His statement that the clergy “will not or cannot give up all claims to a constitution” refers, no doubt, to Collegialism, particularly to its insistence on the ius excommunicationis (“a claim to power and rights, yet no one can state who should exercise them”); see Canz, Disciplinae, §2655ff., where the question is discussed whether the potestas excommunicandi belongs to the prince or to the church. The fact that Mendelssohn speaks summarily of ecclesiastical law without specifying the trend or trends to which he refers should cause no surprise. The division—current today—into the three major trends (Episcopalianism, Territorialism, Collegialism) appears for the first time in Daniel Nettelbladt’s De tribus systematibus doctrinae de jure sacrorum dirigendorum, which was published in 1783, the year in which Mendelssohn’s Jerusalem came out; see Schlaich, Kollegialtheorie, 17; 33f.

35, 4 Mendelssohn now turns his attention away from ecclesiastical law—to which he will briefly return later (pp. 79–84)—in order to discuss two thinkers—Hobbes and Locke—who deal with the problem of church and state on a philosophical level, one more congenial to his taste. Yet he was obviously conscious of the importance of the debate in the ecclesiastical law schools which had recourse not only to reason, natural law, and Scripture but also to canonical law, the “Confessions,” and the secular juridical sources. The attention he paid to that debate reflects his keen awareness of the fact that in it the acuteness of the problem was most concretely envisaged. The philosophical discussion moved ...