In his chapter on the radical theology of abundance and ethics of Karl Barth, Mårten Björk discloses a central concept to the reformist theologian: the suum cuique, a term that prima facie could be rendered in natural law definition of legal justice, inherited from Roman lawyer Ulpian, as “may all get their due”. In the thomist tradition the legal notion of epikeia promptly became equity as the moral supervision of law’s principle (ius) understood as the application of the fair and the objective good. The justification of the balancing of aequum became a regulatory mediation on the grounds of a fictive principle of nature as moral reasoning, which has been well documented by Stephen Humphreys . What makes Barth’s drawing on the notion of suum cuique in his interwar pamphlet Church and State (originally entitled Justification and Law, 1938), on the contrary, is precisely that it is not reducible to equity, but rather as Björk explains it: “the limit to our life, a limit brought forth by death itself, is in the end the vast chams that posits the creature as create of God…and this has ethical and political consequences” . This is telling, and my aim here is to supplement the discussion in “Abundance and Scarcity” by showing its radical asymmetry with the reasonableness of the natural law. Barth’s anti-activist Church (although not neutral in the wake of the total state of the 30s) and apathy towards morality, stands as a sui generis bearing.
First, in the moral natural law tradition of equity (epikeia) “giving each one their due” becomes a strict legal-authoritative command principle on the reasonableness of nature centered on the ontology of the person. It is quite the opposite for Barth who does not favor a constant moral adjudication, since the separation between Church and State presupposes a previous divine justification that belongs exclusively to the Church, but not to the state. In fact, law practiced on the condition of natural principles will undermine the authority of the liberal positivist state, which Barth defends vehemently, making the case for its coherence with the teachings of the New Testament: “The democratic conception of the state is justifiable expansion of the of the New Testament…Christians must not only endure the earthly state but they must will it as a just state, not as a “Pilate” state” . It is not surprising, then, that Barth wrote this tract openly defending the authority of the modern positivist state, contrasting it to the anti-statist unjust pretarian judgement of the trial of Jesus. This makes sense given that the pretorian ius honorarium could be understood, at least in part, as belonging to the tradition of the moral balancing of equity between morality and norms (just as the two irreducible kingdoms) . Barth’s defense of the positivist state is even contrasted to natural law, which for Barth is incommensurable with the word of God: “We cannot measure what law is [in the State] by any idea of natural law…” .
Accepting the primacy of the equity of a substantive bonum will not only serve to override the authority of the state, but also, and more importantly, to flatten out theology’s monopoly over divine justification. At this point Barth is quite explicitly in saying that this is what took place – and I think he is correct, specially if we take into account that the degenerate legality in Nazi Germany and Stalinist Russia was not an abuse of positivism, but a consequence of the open-ended common and natural law principles to the point of distortion – in the wake of fascism and Bolshevism in the interwar years of Europe. Barth writes with this in mind against artificial heavens on earth, as part of a hyperbolic “politicizing from above”:
“Fascism and Bolshevism alike will be dethroned and the true order of human affairs will arise. Not as heaven (not even a miniature heaven) on earth! No, this “true order” will be able to arise only upon this earth and within the present age, but this will take the place really and truly, already upon this earth, and this present age, in this world of sin and sinners…this is what the Church has to offer to the state…” .
The political domination of the total state amounted to a conflation between the lapsarian condition of man and the theology of eternal life. The passage or mediation between the two dimensions, which he also described as a “tailor made garment” was the suum cuique, understood as a limit to life and death beyond morality and biological reductions. Barth insisted on the principle of separation in face of every temptation of technico-rational closures. Thus, by externalizing divine justification to the sphere of theological eternity, Barth’s conception of “giving one’s due” was radically disambiguated from the Nazi motto “Jedem das Seine” (to each his own) in the concentration camp of Buchenwald in 1937, made possible by the opened force of common law adjudication against the state positivist authority (understood by Nazi legal scholars as “too Jewish”). This was the barbaric dereliction of duty of the state becoming what Barth called a “clerical state” . Barth’s ethical limit on finite and eternal life, so well reconstructed in Björk’s brilliant monograph, can only be a witness to a ‘world passeth away’ to which no priestly jurists have the last word unless catastrophic consequences are expected. The ethical response to the lapsarian condition was a radical drift from the dangers of natural absolute rationalism that was directly implicated in the arousal of immanent powers and the reduction of the population as mere administration of doctrine of last things through consciousness and not grace. The suum cuique introduced a radical exteriority in which all men became “strangers” (to the Church, national identity, the community, to the social) whose proper involvement pertained to the eternal mystery of life and death.
1. Stephen Humphreys. “Equity before ‘Equity’”, Modern Law Review, 2022, 1-37.
2. Mårten Björk. The politics of immortality in Rosenzweig, Barth, and Goldberg: Theology and Resistance Between 1914-1945 (Bloomsbury, 2022), 115.
3. Karl Barth. “Church and State”, in Community, State, and Church (Anchor Books, 1960), 146.
4. Gerardo Muñoz. “El pretor romano y el ius honorarium”, Infrapolitical Reflections, 2022: https://infrapoliticalreflections.org/2022/04/24/el-pretor-romano-y-el-ius-honorarium-por-gerardo-munoz/
5. Ibid., 147.
6. Ibid., 148.
7. Ibid., 132.