The Divine Right of Kings

by Philip Jones

John Neville Figgis, The Divine Right of Kings (1896).

This post, and the one that follows it, depart somewhat from the usual subject-matter of this blog.  They are appreciations of commentaries by two outstanding Anglican writers.  Although they are not concerned with ecclesiastical law the commentaries address two subjects close to ecclesiastical law, the relationship between the Church and the secular state, and Christian morality.  

The author, a high Anglican clergyman, sought to address the position of the Church in the modern, and British, world at the end of the 19th century.  On one view, this had never been stronger.  The British empire was at its zenith.  The Church of England had followed in its wake to create the worldwide Anglican Communion.  However, the Church was also vulnerable.  The theocratic regime and theocratic assumptions on which it had been based since the Reformation had collapsed.  The British constitution was hardly less secularised than it is today.  Theories of natural law had become discredited in favour of a legal positivism.The Church of England remained ‘established’, but there was some agitation in favour of disestablishment, and the overseas Anglican Churches were all constituted on a voluntary basis.

While accepting that divine right theory has no place in the contemporary world, the author attributes to it the emergence of modern liberal democracy: ‘to the derided Anglican clergy of the 17th century are due many of the most cherished principles of modern life’ (p.213).  It was the achievement of divine right theory in England to effect a gradual and largely peaceful transformation from mediaeval theocracy to stable pluralist democracy.

Divine right theory emerged in the late middle ages, though its origins may be traced to the Bible and ancient history.  It was enthusiastically adopted by the Tudor regime in England.  Henry VII’s claim to the Crown was weak, and the Crown itself had been weakened by the Wars of the Roses.  Divine right theory was therefore an intellectual force for strong government and passive obedience thereto.  During the Reformation, it was employed to promote the Crown’s claim of supremacy over the English Church and to oppose the Pope’s own claim of divine right.  Its popularity revived in the later 17th century following the restoration of the Stuarts and the unsettling experiences of the English civil war and the Cromwell regime.  The theory inculcated the need for continuity in national life, and a ‘law-abiding habit’ regardless of social class.

Divine right theory teaches that ‘laws’ and ‘human rights’ are not enough by themselves.  Law requires a lawgiver, a sovereign, to make and enforce the laws.  The sovereign is, and must be, ‘technically arbitrary’ (p.241).  The author deprecates the ‘[impossible] dream of a perfect state with no power in it exempt from legal limitation’.

The sovereign need not be an hereditary monarch.  However, sovereignty cannot be explained in terms of a mere social compact.  The state is an entity that is native to mankind, not something artificially created by mankind.  As Burke taught, the state has an ‘organic character’, an identity and character of its own (p.251).  It therefore cannot be dismantled and reconstructed ab initio.

Sovereignty may be democratic rather than autocratic, but there is no sovereignty of the people in any modern state.  In Britain, Parliament is sovereign, not the electorate.  The electorate cannot be sovereign because it does not make and enforce the laws.  Its function is limited to electing those who do.

The modern secular state does not acknowledge the supreme authority either of the Pope or of a Calvinist presbytery.  Any clerical hierarchy within the state is subordinate to the sovereign.  The English state repudiated the authority of the Pope at the Reformation and also declined to accept a presbyterian regime on the Genevan model.  Instead it asserted ‘absolute competence to prescribe forms of religious belief … and … of ecclesiastical organization’ (p.202).

However, this totalitarianism was mitigated by the state’s ‘consent[ing] to be guided’ by the English hierarchy (p.202).  The clergy were the ‘experts’ on whom the state relied in all matters of religion.  Anglicanism compared favourably with Gallicanism, which ambiguously asserted a state sovereignty in political matters while admitting the ‘spiritual claims’ of the papacy, yet could not resolve the tension between political sovereignty and religious claim (p.112).

The essential function of a clerical hierarchy is to guarantee or protect the religious conscience.  Provided the state accepted the advice of the clerical ‘experts’ there was no need of a papacy or presbytery.  Once the state accepted the principle of religious freedom, that obviated the need for any clerical hierarchy at all.  Thus a religious ‘establishment’ is not essential in a free country.  A clerical hierarchy is only necessary where the state denies religious freedom to its subjects, or purports to determine religious questions for itself.

The course of history in the 2oth century, after the author wrote, makes it doubtful that the benign legacy he attributed to divine right theory has endured.  The positivist link between law and lawgiver rests on the assumption that sovereign and subjects share a common conception of what law is.  It assumes that the sovereign will always respect certain values, values which are derived from the Christian religion.  The atrocities committed by modern totalitarian regimes have shattered that assumption.  It is therefore harder to accept that law can be entrusted to any sovereign lawgiver.

Modern secularism has also challenged the assumption of a law based on Christian values.  The author’s conclusions on religious freedom look a little complacent (with the benefit of hindsight, of course).  The state should undoubtedly practise religious tolerance but it is questionable whether the state can ever be neutral in matters of religion.  Tolerance and neutrality should be clearly distinguished.  If the state affects a religious neutrality, it merely constructs a religion-substitute or ideology of its own, which takes the place of traditional religion, and which may be far from tolerant of religions which contradict it.

It is therefore arguable that a religious ‘establishment’ of some sort may be essential to religious freedom after all.  If religious freedom is to be respected the state ought to, indeed must, accept one religion as the religion of the state, while tolerating others.