Overheard upon the election of Pope Francis: “Finally ‘social justice’ won’t be a bad word anymore.” It is astounding how many misconceptions can be packed into nine short words.
First, there is this constant misperception that Francis, because of some stylistic differences, is somehow light years apart from Pope Benedict XVI in substance. Actually, a comment like the one above somehow suggests that Francis is radically different from most, if not all, of his modern predecessors. Here’s the rub: when people are asked to present evidence that Pope Francis is somehow “different,” they simply fall flat. They fall flat because there is no evidence. Even if one were to reach back into his days as Cardinal Bergoglio, the evidence of continuity piles up left and right (pun intended). I will resist the urge the quote extensively from Benedict, John Paul II, and others to demonstrate the continuity, mostly because I am getting weary of the task. The more I talk with people who adhere to a sudden jolt of discontinuity brought about by the Bergoglio pontificate, the more I think that the onus of proof is on them. Those who see Francis as “different” or a “breath of fresh air” or as someone who will finally “bring the Church into the modern liberal world” owe us some evidence of the fact. They owe us a rational argument and examples of such a claim.
However, the opening quotation is about more than a perceived discontinuity. It is also about a mistaken understanding of “social justice” in the Church, on two accounts. The first account is that “social justice” is somehow limited to poverty, immigration, the environment, and universal health care. “Social justice” is much broader than just these issues. If we break down the two terms, “social” refers to man living with his neighbor, and “justice” refers to the classical virtue. Therefore, anything involving the dignity of the human person would fall under this category. “Social justice” would then also include the right to life from conception to natural death, upholding the traditional definition of marriage, and issues of cloning and fetal stem cell research. Quite frankly, in its broader sense it would also include basic issues of morality such as the Church’s teaching on contraception. On that note, I return to the point in the previous paragraph. One who claims that Francis is or will be different from his predecessor on any of these issues should be required to demonstrate an argument complete with examples. I have dedicated most of my spare reading time to the writings of John Paul II, when he was pope, and Benedict XVI. I can tell you that both men tirelessly stood up for the poor, called Catholics to personal action in this regard, defending the dignity of life at all stages, spoke about the challenges and abuses regarding immigration, taught us that basic health care is important for all of mankind, vehemently resisted efforts to change the definition of traditional and sacramental marriage, encouraged us to protect the environment, and spoke out against human cloning and fetal stem cell research. They also reaffirmed the Church’s teaching on difficult issues of morality such as contraception. They did so because they were Catholic. They did so because they were relentlessly dedicated to the truth. Pope Francis has shown in his time as Cardinal Bergolgio and his opening month as Holy Roman Pontiff complete continuity with regards to the Church’s teaching in all of these areas.
The second account of how the opening quotation misconstrues “social justice” is how it collapses the difference between principle and implementation to the latter. When it comes to moral principles, theologians distinguish between what the concept is (principle) and how best to achieve it (implementation). For instance, an individual cannot in good conscience be a practicing Catholic and not adhere to the principle that we are responsible for taking care of the least among us. Christ clearly calls every individual to be concerned with the poor. That is the principle. The implementation is something altogether different, and people of good will can disagree on the best way to bring about the call to help those in need. Is it through major government programs, is it through private charitable giving, or is it through some mix between the two?
There are, however, some moral teachings in which the principle is the same as the implementation: abortion, for instance. There is no other way to implement the moral principle of the right to life except to protect it at all stages. Any law that does not seek full protection is unjust insofar as it fails in this regard.
Here is where we return to the crux of the issue. “Finally ‘social justice’ won’t be a bad word anymore.” Social justice was never a bad word, or a bad pair of words to be precise, within the Church. Those who get frustrated when the term “social justice” is thrown around carelessly do so not because of the term itself, nor because of their own personal commitment to the Church’s teaching, but rather because of its misuse, because of how it is pigeonholed into a platform for the political left.
We are all called to seek justice in every area of Catholic moral teaching, just as we always have been. There is nothing that has changed in the transition of Pope Benedict to Pope Francis in this call. In order to understand this properly, however, we must be able to distinguish principle from implementation. The Church calls all of us as individuals to do what we can to help the world’s poor. However, this is something altogether different that looking to government to solve the problem for us, to take the onus off the individual. This has always been the crux of the issue. I would have severe words for the “Catholic” who says, “The poor are not my problem, and my time and money will not be wasted trying to solve this issue.” Yet I would have equally severe words for the person who thinks that government programs are the solution to the nation’s poverty.
If the Church has learned anything from the centuries-long bad press she received regarding the Galileo debacle, it is that she should tread very lightly in speaking outside of her area of expertise. The Church should and will point out instances of economic injustice, but providing specific economic solutions is something that she leaves to those governing the nations. Instead, the Church stays at the level of the human heart. She calls every believer to serve the poor, but she does not call believers to support specific government solutions. Pope Francis is an outstanding example of this. He states the principle, and then he does it. But he most emphatically does not say that we can pass off our personal responsibility to government programs. Rather than calling up the Italian government to dictate how they can best take care of and rehabilitate the imprisoned youth of the country, he – he himself – washed their feet. The call of the Gospel is a call to the human heart. It is not a call for any one government program.
This is where some issues of social justice are different than others. Some allow for disagreement among people of good will when it comes to the implementation. Others do not because the principle is the same as the implementation. We saw this play out in the last Vice Presidential debate between two Catholics. On the one hand there was the Republican Paul Ryan who, when criticized for his economic plan, stated clearly, the the plan did not violate Catholic principles, but rather it is because of Catholic principles than he supports the plan. Congressman Ryan was interviewed on EWTN and allowed to explain this in more detail. He said in no uncertain terms that he has a deep compassion for the poor, one that is formed by his Catholic upbringing, and then he outlined precisely why he thinks that fiscal conservatism is the best way to help the poor. One is free to disagree with the Congressman on the level of economics. For my own part, I readily recognize that I am not an economist, and so I have little to add on whether or not Ryan’s plan will work. I can say that the entitlement programs of the left seem to not have produced near the results that they promised since their inception. What I do know is that Ryan is well within Catholic social teaching in his explanation of his fiscal policies. He might be dead wrong on an economic level, but he is clearly approaching this as a well-formed Catholic. On the other hand we had Vice President Joe Biden who, when questioned about his stance on abortion, stated,
My religion defines who I am, and I’ve been a practicing Catholic my whole life. And has particularly informed my social doctrine. The Catholic social doctrine talks about taking care of those who – who can’t take care of themselves, people who need help. With regard to – with regard to abortion, I accept my church’s position on abortion as a – what we call a de fide doctrine. Life begins at conception in the church’s judgment. I accept it in my personal life. But I refuse to impose it on equally devout Christians and Muslims and Jews, and I just refuse to impose that on others, unlike my friend here, the – the congressman. I – I do not believe that we have a right to tell other people that – women they can’t control their body. It’s a decision between them and their doctor. In my view and the Supreme Court, I’m not going to interfere with that.
The problem is that one cannot hold this position and be a Catholic in good conscience. This is because when it comes to abortion, the principle is the same as the implementation. One cannot hold in principle that every life has a dignity and should be afforded protection from the first moment of conception and then claim the best way to implement this is to not protect it.
“Social justice” is not a bad word, but these two principles must be kept in mind when properly discerning the Church’s teaching in matters of social justice. First, “social justice” is bigger than the “left” and on the “right.” It includes a whole range of issues. Second, many of the issues are stated as principles, but details of implementation are left up to the prudential judgement of national leaders. The Church will only speak out of issues of national implementation when a specific system has demonstrated utter incompatibility with Church teaching, as when she condemned socialism.
It seems to me that Pope Francis understands social justice quite well, just as did his predecessor and his predecessor’s predecessor. There will not be a change in Church teaching with the new Pope, no matter how much the left wants to co-opt Pope Francis for their own political agendas.
My dearest son, if you desire to honor the royal crown, I advise, I counsel, I urge you above all things to maintain the Catholic and apostolic faith with such diligence and care that you may be an example for all those placed under you by God and that all the clergy may rightly call you a man of true Christian profession. Failing to do this, you may be sure that you will not be called a Christian or a son of the Church. Indeed, in the royal palace after the faith itself, the Church holds second place, first propagated as she was by our head, Christ; then transplanted, firmly constituted and spread through the whole world by his members, the apostles and holy fathers. And though she always produced fresh offspring, nevertheless in certain places she is regarded as ancient.
However, dearest son, even now in our kingdom the Church is proclaimed as young and newly planted; and for that reason she needs more prudent and trustworthy guardians lest a benefit which the divine mercy bestowed on us undeservedly should be destroyed and annihilated through your idleness, indolence or neglect.
My beloved son, delight of my heart, hope of your posterity, I pray, I command, that at every time and in everything, strengthened by your devotion to me, you may show favor not only to relations and kin, or to the most eminent, be they leaders or rich men or neighbors or fellow-countrymen, but also to foreigners and to all who come to you. By fulfilling your duty in this way you will reach the highest state of happiness. Be merciful to all who are suffering violence, keeping always in your heart the example of the Lord who said: I desire mercy and not sacrifice. Be patient with everyone, not only with the powerful, but also with the weak.
Finally be strong lest prosperity lift you up too much or adversity cast you down. Be humble in this life, that God may raise you up in the next. Be truly moderate and do not punish or condemn anyone immoderately. Be gentle so that you may never oppose justice. Be honorable so that you may never voluntarily bring disgrace upon anyone. Be chaste so that you may avoid all the foulness of lust like the pangs of death.
All these virtues I have noted above make up the royal crown and without them no one is fit to rule here on earth or attain the heavenly kingdom.
(From admonitions to his son by Saint Stephen, Office of Readings for August 16, the Memorial of St. Stephen of Hungary.)
With the election of John Paul II many eyes turned towards Poland, a nation that was persecuted under both the Nazi’s and the Communists during much of the last century. Both of the persecutions sought to destroy not only the state of Poland, but also the nation and the culture. While Poland has a unique place in the geography of Europe, its story of occupation and persecution is played out in several other neighboring regions, one of the most prominent is Hungary. While it is not my intent to give a full history of this nation, some details from the twentieth century can help set the stage.
In 1918, Mihaly Karolyi came to power as the Prime Minister, eventually becoming the president of the first republic of Hungary. Unfortunately, he ordered the disarmament of the Hungarian army, which essentially left the nation without any viable defense. This led to the occupation of various regions of Hungary: Romania took control of much of the eastern regions, Czechoslovakia occupies the north, and both Serbia and France took over the south. All of this led to the significant decrease of the sovereign land.
In March of 1919 the Communists took power in Hungary, which was declared the “Hungarian Soviet Republic” just a month later. The communist leader, Bela Kun, was ousted from power in June of that year, and new borders were set under the Treaty of Trianon in which Hungary lost 71% of its territory and 66% of its population. The ethnic Hungarian population became minorities in the neighboring countries that were awarded Hungarian land under the terms of the treaty.
When Germany invaded the Soviet Union in 1941, Hungary joined the effort and formally joined the side of the Axis Powers. However, the friendship would not last very long. When Hungary suffered major losses in 1943, it sought to negotiate a surrender with the Allies. In opposition to the proposed surrender, the German army occupied Hungary in 1944. At this point, Hungary finds itself between a rock and a hard place. When they tried to withdraw from the war, the Germans replaced their government with a mock government, essentially any functioning government in the country and making them a puppet for the Nazi regime. Later in 1944 the Soviets invaded Budapest, with Hungary suffering devastating losses. The loss of life was not the only result of the war. Hungary also lost nearly 60% of its economy. On February 13, 1945, Budapest surrendered unconditionally.
As in Poland, when the Nazis withdrew, the communist troops occupied all of the country. The Hungarian Revolution, a heroic response to the post-was government, occurred in 1956. By October 30 of that year, the Soviet Army withdrew from Budapest, but not before inflicting a severe loss of life on the revolutionaries, many of whom were peaceful demonstrators. The Soviets did not withdraw for long. They returned on November 4, 1956, and with a vengeance, sending troops numbering in the 100,000 – 200,000 range. An estimated 20,000 people were killed, and 250,000 people left the country.
The last part of the 1980’s brought a fundamental shift in the structure and governance of Hungary. Due to a series of protests and a changing global political climate, the country began a shift towards a multi-party systems, a free market economy, and a change of political power. By May of 1989, Hungary began taking down the barbed wire fence along the Austrian border, the first hole in the Iron Curtain. The events accelerate at this point. East German refugees are allowed to go to the West (the exodus of which had no small part to play in the fall of the Berlin Wall), Hungary is declared a republic, free elections return, and the conservative party wins big in 1990. By 1991 the last Soviet troops quietly withdrew. With the new economic conservatism, there was a decrease in the standard of living as the government subsidies were removed, so for a brief time, the Socialist party was restored in the election of 1994. Currently, however, the President, Prime Minister, and Speaker of the National assembly are all members of Fidesz, the national conservative political party.
All of this is a millennium after the letter of St. Stephen of Hungary, who ascended to the throne in 1000 AD with a crown sent by Pope Sylvester II. Stephen embodies the character of the Hungarian nation, which somehow survived, much like Poland, despite the non-existence of the Hungarian state through much of the last century. St. Stephen remains one of history’s rare monarchs who combined energy, holiness, and practicality. Because of this, he was largely responsible for the conversion of the native tribes to Catholicism. In a recent article by Christopher Gawley in New Oxford Review, the king-saint is described as follows: “Imagine Charlemagne’s administrative brilliance combined with St. Louis IX’s sanctity.”
While the challenges of Hungary are not a few, most pressing being the dismal population replacement rate of 1.25, this small a formidable nation still has something great to offer the world. Countries that were founded on Christian principles have rapidly been losing their Christian identity in the last half a century. There are new attempts every day to remove words like “God” and “Creator” from national mottoes, anthems, and founding documents. Despite this unfortunate tendency, the small nation of Hungary managed something quite remarkable in its new Constitution that took effect on January 1, 2012. In not only imbued the document with a Christian character, but it also codified many of the human dignity issues that continue to suffer under bad interpretations of constitutions in other nations of the modern West. Said more forthrightly, the abortion and marriage debates that are raging through our country and much of Europe (though in many places the “debates” seem disastrously more settled than in others) would be far easier to defend constitutionally had the founders written them directly in to the Constitution itself. While I firmly believe that honest Constitutional arguments will come down on the Christian side on most every issue, the presence of any ambiguity whatsoever gives the left an opportunity to highjack the “intent” of the codified law. Perhaps after watching this process play out in much of the developed world, the hindsight Hungary enjoys has allowed them to “do things differently.”
Right under the title of the Constitution we read, “God bless the Hungarians.” Immediately following is the “National Avowal.” In writing this, I tried unsuccessfully to cut it down. While long in print, it is succinct on content, and the remarkableness it enjoys deserves to be quoted in its entirety. I will put the more impressive parts in bold.
WE, THE MEMBERS OF THE HUNGARIAN NATION, at the beginning of the new millennium, with a sense of responsibility for every Hungarian, hereby proclaim the following:
We are proud that our king Saint Stephen built the Hungarian State on solid ground and made our country a part of Christian Europe one thousand years ago. We are proud of our forebears who fought for the survival, freedom and independence of our country. We are proud of the outstanding intellectual achievements of the Hungarian people. We are proud that our people has over the centuries defended Europe in a series of struggles and enriched Europe’s common values with its talent and diligence. We recognize the role of Christianity in preserving nationhood. We value the various religious traditions of our country. We promise to preserve the intellectual and spiritual unity of our nation torn apart in the storms of the last century. The nationalities living with us form part of the Hungarian political community and are constituent parts of the State. We commit to promoting and safeguarding our heritage, our unique language, Hungarian culture, the languages and cultures of nationalities living in Hungary, along with all man-made and natural assets of the Carpathian Basin. We bear responsibility for our descendants; therefore we shall protect the living conditions of future generations by making prudent use of our material, intellectual and natural resources. We believe that our national culture is a rich contribution to the diversity of European unity. We respect the freedom and culture of other nations, and shall strive to cooperate with every nation of the world. We hold that human existence is based on human dignity. We hold that individual freedom can only be complete in cooperation with others. We hold that the family and the nation constitute the principal framework of our coexistence, and that our fundamental cohesive values are fidelity, faith and love. We hold that the strength of community and the honor of each person are based on labour, an achievement of the human mind. We hold that we have a general duty to help the vulnerable and the poor. We hold that the common goal of citizens and the State is to achieve the highest possible measure of well-being, safety, order, justice and liberty. We hold that democracy is only possible where the State serves its citizens and administers their affairs in an equitable manner, without prejudice or abuse. We honor the achievements of our historical constitution and we honor the Holy Crown, which embodies the constitutional continuity of Hungary’s statehood and the unity of the nation. We do not recognize the suspension of our historical constitution due to foreign occupations. We deny any statute of limitations for the inhuman crimes committed against the Hungarian nation and its citizens under the national socialist and communist dictatorships. We do not recognize the communist constitution of 1949, since it was the basis for tyrannical rule; therefore we proclaim it to be invalid. We agree with the members of the first free Parliament, which proclaimed as its first decision that our current liberty was born of our 1956 Revolution. We date the restoration of our country’s self-determination, lost on the nineteenth day of March 1944, from the second day of May 1990, when the first freely elected body of popular representation was formed. We shall consider this date to be the beginning of our country’s new democracy and constitutional order. We hold that after the decades of the twentieth century which led to a state of moral decay, we have an abiding need for spiritual and intellectual renewal. We trust in a jointly-shaped future and the commitment of younger generations. We believe that our children and grandchildren will make Hungary great again with their talent, persistence and moral strength. Our Fundamental Law shall be the basis of our legal order: it shall be a covenant among Hungarians past, present and future; a living framework which expresses the nation’s will and the form in which we want to live. We, the citizens of Hungary, are ready to found the order of our country upon the common endeavors of the nation.
There is explicit mention of the Christian character of the nation, and the character is demonstrated in the subsequent statements. There is also a national pride that comes through loud and clear. Yet the “Avowal” is only the beginning. The Christian principles are codified in the rest of the document. Foundation, Article L reads, “Hungary shall protect the institution of marriage as the union of a man and a woman established by voluntary decision, and the family as the basis of the nation’s survival. Hungary shall encourage the commitment to have children. The protection of families shall be regulated by a cardinal Act.”
Freedom and Responsibility, Article II reads, “Human dignity shall be inviolable. Every human being shall have the right to life and human dignity; embryonic and fetal life shall be subject to protection from the moment of conception.”
Article VII says, “Every person shall have the right to freedom of thought, conscience and religion. This right shall include the freedom to choose or change religion or any other persuasion, and the freedom for every person to proclaim, refrain from proclaiming, profess or teach his or her religion or any other persuasion by performing religious acts, ceremonies or in any other way, whether individually or jointly with others, in the public domain or in his or her private life.”
Article XVI reads, “Every child shall have the right to the protection and care required for his or her proper physical, mental and moral development. Parents shall have the right to choose the type of upbringing they deem fit for their children. Parents shall be obliged to look after their children. This obligation shall include the provision of schooling for their children. Adult children shall be obliged to look after their parents if they are in need.”
The document is credited in large part to the leadership of prime minister Viktor Orban, who correctly recognized that the current economic and social crises of Europe are due entirely to the loss of Christian identity and commitment to Christian values. He recently said, “A Europe governed according to Christian values would regenerate. The European crisis has not come by chance but by leaders who have questioned precisely those Christian roots” (quoted in Gawley’s article).
It is no surprise that the Hungarian Constitution has caused much consternation among the political left in both Europe and the United States. For me, it is a sign of great hope (both the Constitution and the liberal response). While the Catholic Church, under the leadership of Cardinal Peter Erdo, has some work cut out for it, the adoption of the Constitution demonstrates that a significant number of people are hungering (“Hungary-ing”?) for an end to the failed experiment of liberal permissiveness, hollow multiculturalism, and an inorganic break from the past. The “National Avowal” demonstrates that a nation committed to moral renewal, beauty, national pride, the dignity of human life, authentic culture, freedom for excellence, honor for God, a conscious connection with heritage and history, children, family, virtue, and dare I say it, faith, is still not only possible, but is actively sought out and welcomed. I’m not claiming that the United States is anywhere close to something like this, but I am saying that there is a substantial portion of our population that would rejoice over such ideas. Maybe it is not out of the question. Maybe with enough efforts, sweat, tears, and most importantly prayer, the ideas enshrined in the Hungarian Constitution can take root in nations across the world, nations that already have the historical roots necessary for such change.
Until that day comes, we plead, St. Stephen of Hungary, ora pro nobis.
In my initial post on the election of Pope Francis, I concluded with a mild chastisement of those who have take on a spirit of uncharity with regards to the liturgical decisions of the new Holy Father. To be clear, I have never suggested that papal decisions are beyond criticism. Pope’s are not perfect in every matter. Some will have strengths in one area and weaknesses in others. Pope John Paul II was not a very strong liturgical pope, but he will inevitably be numbered among the Church’s “Great” Holy Fathers for more reasons than we can count. Pope Benedict was a masterful liturgist, but his management of those in the Secretary of State’s office left something to be desired. Even someone like Pope Paul VI, who was largely responsible for the tragic liturgical rupture of the last century, managed to produce Humanae Vitae, arguably one of the most important Catholic moral documents in recent memory. I am also not suggesting that we put on rose colored glasses and assume that Pope Francis will “come around” to the liturgical stylings of his predecessor. It is likely he will not. This pope seems to be entirely committed to simplicity in both his private and public actions. That being said, respectful conversation about liturgies, papal or otherwise, are not only appropriate, but also encouraged. Pope Benedict XVI believed firmly in a “bottom up” liturgical reform. The new liturgical movement will not be driven off course in the least by the actions of this or that pontiff. It will continue to bear fruit so long as it is done in charity and with a spirit of filial love for the Holy Father. This last point is essential. The liberal factions within the Church who have been calling for things such as women’s ordination will never be taken seriously, and not simply because they are asking for the reversal of infallible teachings, but also because their tactics are often tactless. While the new liturgical movement has on its side the history of the Church, the argument from beauty, and the backing of many within the magisterium, I can assure you that the day we abandon the virtues of charity and obedience is the day that we surrender our right to be taken seriously. It is also the day that, as individuals, we put up barriers to our personal sanctification. Without charity, there can be no holiness.
With that, there are a few points I wish to make as we go forward. First, Vatican Information Services reported on March 14, “The director of the Holy See Press Office commented on the Pope’s first public appearance yesterday evening, greeting the crowd gathered in St. Peter’s Square. He noted a few significant gestures that characterized the simplicity and serenity of that encounter, beginning with the Pope’s request that the faith pray for him and his choice of vestments” (emphasis added). The Holy Father has made deliberate decisions regarding his vestiture, but he has done so by asking for our prayers. Since when do we not take men at their word? There are those who have tried to cast Pope Francis’ humility as anything from “misplaced” to “disguised arrogance.” While we can agree or disagree on the choice of vestments itself, and while we can have respectful dialog about what “simplicity” means within the Roman Rite and papal liturgies, it is entirely inappropriate to judge what is in the pope’s heart. He has said that he wants to bring a spirit of humility and simplicity to the papacy and the wider Church, and we owe him the benefit of the doubt that this is his true intention. To assume arrogance and pride in another man’s hear, especially the pope’s, is not our place. He deserves to be taken at his word. He also deserves the prayers for which he has asked. We are Catholic, folks. We pray. We pray, and we abandon ourselves to the will of God. Rather than vitriol, we should exhibit virtue. Before we jump on a website to level our criticisms, perhaps we should take an hour to pray both for our own dispositions and for the Holy Father.
Second, there has always been a tug between the simple and the ornate within the Church. The Roman Rite itself has always been by its nature simple and less ornate than many of the eastern rites. Even within the Gospels we have Jesus presented as somehow both. We have the scene at Bethany where he allows the woman to pour the expensive oils on his feet despite the objections from Judas that the oil could be sold and the profits could be given to the poor. And yet we can’t ignore the fact that Jesus was a humble and relatively poor man who lived a life that was as simple as can be.
Look, those who have known me for years know full well what side of the liturgical coin I prefer. Like the oil at Bethany, I think that no expense is too much when it comes to the worship of the almighty God. I believe whole heartedly that the liturgy does not belong to anyone, including this or that pope. I believe that the most important thing for our time is to recover the essence of the sacred liturgy and to restore a spirit of continuity with our past. I know deep within me that the liturgy is the key to reviving Catholic identity, and identity is key to evangelization and the universal call to holiness. I rejoiced in the beauty of the Benedictine liturgies, from the vestments to the chant to the altar arrangements. I will miss them tremendously, for my heart tells me that they will very much not be present in the Franciscan liturgies to come. It is okay to say that I side with Benedict on this. It is even okay to say that new liturgical movement will push ahead despite the decisions of Pope Francis. But it is not okay to throw the baby out with the bath water, and it is certainly not okay to resort to childish tirades over a man we barely know.
In other words, if we can adopt the humility called for by our beloved Holy Father, we can and we will learn something from him. As I said from the beginning, every pope has his strengths and weaknesses. To ignore the former because we are preoccupied with the latter is a disservice to ourselves, to the pope, and to the Church. If we focus too much on the liturgical rupture of Paul VI, we will miss Humanae Vitae. If we zoom in on some of the misplaced ecumenism of John Paul II, we will fail to recognize the brilliance of his writings on faith, reason, and the nature of the human person, not to mention the part he played in bringing down communism. If, like the media, some see only the failed management of certain curial departments under Benedict XVI and are consequently blinded to the importance of his liturgical legacy, they are equally to blame. How is it that the fans of Benedict’s liturgies so readily understand this last example but fail to see the flip side of the coin in the previous two examples?
Pope Francis does have something to teach us, and I firmly believe it is a lesson that much needed in the world: a call to simplicity and personal poverty. I don’t mean here personal destitution, but rather that call to Gospel poverty clearly spelled out in the Sermon on the Mount. It strikes me when reading Luke’s account of this monumental sermon that the beati of the poor is the only one that bears a present promise. All the others guarantee some future reward (you shall be filled, you shall laugh, etc.). Yet when it comes to being poor, the promise reads, “Yours is the kingdom of God.” There is blessing in simplicity, yet the world in which we live is not at all conducive to this call. Despite this, it remains true that in this call to simplicity we will find God.
Please don’t get me wrong. I am very much of the camp that our worship of the almighty God in the Sacred Liturgy is something the deserves both great attention to detail and an aesthetic that conveys the reality of heaven-com-down-to-earth, or perhaps the other way around. Yet the beauty that we should portray in our liturgy should be in stark contrast to the simplicity found within our own lives. Before we decry the liturgical decisions of Pope Francis, we would do well to get our own houses in order. The possessions we have, the gourmet food we eat, the expensive clothes we buy, the cell phones we carry, and the very computers that we use to type out the anti-Francis diatribes … all of this bears asking, “Is it really necessary?” When it comes to the things of the world, there is nothing neutral. Every thing we own, every activity we do, every medium we consume … it either does or does not contribute to our own holiness. The lesson from the first days of the Franciscan pontificate is simple: we must take a spiritual inventory of our own lives, and we need to divest ourselves of those things that are not helping our sanctification.
Don’t throw the baby out with the bathwater. This pope has much to teach us, even if we disagree with him on things liturgical. Dialog. Discuss. But do so in a spirit of prayer and humility, and dare I say it, charitable obedience to our new pope. He deserves our love. He deserves our respect. He deserves our prayers. He deserves our filial devotion. And he does so because he is the Vicar of Christ on earth. He is our Holy Father.
There has been much written about curial disfunction under the reign of Pope Benedict XVI (and perhaps even in the waning years of John Paul II). Not to minimize problems that exist within Vatican governance, but it is worth pointing out that, much as there was the “real” Second Vatican Council and then the “Council of the Media”, so too is there a “real” Curia and the “Curia of the Media.” As my good friend Mark from A Dei in the Life points out, “The ‘Curia’ imagined by the press does not exist, though the idea makes for dramatic stories.”
The Curia is a collection of a number of different offices, and it is worth pointing out that the most important offices such as the Congregation for Divine Worship and the Discipline of the Sacraments and the Congregation for the Doctrine of the Faith seem to be without scandal altogether. I mention these as the most important offices because they deal directly with those task that are specifically and forever assigned to Holy Mother Church: they are part of what makes the Church what she is. Contrast that with something like the Secretary of State. While the tasks assigned to the Secretary of State may be important, they are not in and of themselves essential to the nature of the Church. On the other hand, protection of the Sacraments and the Doctrine of the Church is essential to its nature. It is a curious curial conundrum that the more more “worldly” and non-essential offices are the ones currently plagued with mismanagement. The far more important ones seem to be functioning just fine. While we would certainly like to see a Curia that is managed well in all aspects, it at least seems clear that both John Paul II and Benedict XVI had their priorities straight. They have good men in charge of the most important offices. The press, on the other hand, has these priorities turned upside down.
Mark puts it this way:
[T]he problems associated with the “Curia” most likely do not involve offices such as the Congregation for the Doctrine of the Faith, the Congregation for Divine Worship and the Discipline of the Sacraments, the Apostolic Signatura, the Congregation for Clergy, the Congregation for Bishops, or various others. These make up a significant portion of what constitutes the Curia. The problems (and problematic figures) seem to be more closely associated with the Vatican itself, such as the Secretary of State’s office, the Pontifical Household, etc.
He goes on to say that because the Curial disfunction is not Curial-wide, the Cardinals are savvy enough to know the difference, and thus the “aversion” to a papal candidate coming from the Curia, properly understood, is a construction of the media and not based in reality. Mark ends with a refreshing note of sobriety:
[T]he point is clear enough, and the response should be too. Let’s just relax a bit and not worry so much. The “Curia” imagined by the press does not exist, though the idea makes for dramatic stories. In reality, God is in control of this process, most of the cardinals are in tune to that, and we’ll have the pope of the Holy Spirit’s choosing soon enough. For our part, all we need do is pray and wait.
The rest of Mark’s piece is well done, so please go read it in its entirety.
This is a topic that I have been pondering ever since Pope Benedict announced his resignation. The media, being ever so wise, has insisted that the Holy Father refrain from doing anything that could remotely be considered as giving a particular candidate the papal nod. It strike me, though, that this deserves a great deal more consideration. It is not entirely obvious to me that it would be “wrong” for the current Holy Father to attempt to influence the election. In order to understand this, though, it is helpful to make several distinctions.
First, Church law is quite clear that the Pope has the power to determine how his successor is elected. Virtually every pontiff in recent memory has modified the process to greater or lesser degrees. Universi Dominici gregis (John Paul II) reinforces the age old teaching in no uncertain terms: “It is in fact an indisputable principle that the Roman Pontiff has the right to define and adapt to changing times the manner of designating the person called to assume the Petrine succession in the Roman See. This regards, first of all, the body entrusted with providing for the election of the Roman Pontiff.” In other words, the Pope can set rules even to the extent of who gets to cast a vote. That being said, the role currently belongs (and has belonged for quite some time) to the College of Cardinals: “Confirming therefore the norm of the current Code of Canon Law (cf. Canon 349), which reflects the millennial practice of the Church, I once more affirm that the College of electors of the Supreme Pontiff is composed solely of the Cardinals of Holy Roman Church” (UDG). Yet this doesn’t change the fact that it is always subject to change. Regarding the conclave itself, John Paul II reiterated that it not of itself necessary: “[T]heologians and canonists of all times agree that this institution is not of its nature necessary for the valid election of the Roman Pontiff” (UDG). He then confirms his desire to see it continue: “I confirm by this Constitution that the Conclave is to continue in its essential structure.” So once more we see that the conclave is something that could be changed or even eliminated if any sitting pontiff so desired.
The fact is simple: the Pope can lawfully determine who is to vote for his successor and he can lawfully determine the manner in which such an election is to take place. While I am no canon lawyer, it seems within the bounds of the Petrine Office (with appropriate modifications of canon and special law) that the Holy Father could even do something absurd, perhaps saying: “I hereby declare that the election of the Holy Father in the case of a vacant See be entrusted to Cardinal Burke and Cardinal Canizares. They alone, by majority vote, will determine the successor of St. Peter.” Of course, such a specific naming would be imprudent, for if the individuals named were to pass away before the vacancy and the special law were not modified, the Church would find herself in a real pickle. But it does demonstrate the the Holy Father is given a great amount of latitude in influencing who will succeed him.
It is not even clear whether an election proper is necessary for valid succession. It seems that the Pope in theory could simply name his successor (again with the proper changes in canon and special law, all within his powers as a reigning pontiff).
Of course, I am not suggesting that these sorts of thing would be prudent by any means. Numerous problems could arise from such specifics, both practical and political. But it does make the point that the Holy Father most certainly has the right to influence an election.
Next, we should note that even under current law, the Holy Father does influence the election. For instance, John Paul II changed the “80 years old” cutoff date from the time of the conclave to the time of vacancy. This means that there is at least one cardinal (Cardinal Kasper) who will participate in the conclave and yet would not have under the rules of Paul VI. When the make up of the body of electors is changed, the election has been influenced. Pope Benedict reinstated the long tradition of a necessary two-thirds vote to decide a runoff election in the case of serious deadlock, whereas under John Paul II’s rule a simple majority would have been sufficient. This most certainly can influence the election, and if it indeed progresses to the point of a runoff, it likely will influence the election.
Let us also not forget the obvious point that the voters are appointed by the Pope himself. Benedict has already appointed over half of the cardinal electors, and every cardinal elector has been appointed by either Benedict XVI or John Paul II. In the appointing of the college, the Pope clearly influences the election.
Finally, though perhaps more subtlety, there is the fact that Pope Benedict has resigned office, and in doing so he has necessarily placed the election of the next pontiff during a time when the former pontiff is still alive. It is naive to think that this will not enter the minds of the cardinals. Pope Benedict will influence this election and will do so without having to speak a word to anyone.
Of course the media, and others who are terrified of a new pope who is in continuity with the current Holy Father, recognizes these influences. Some have even accused the pope of deliberately trying the extend his pontificate in the act of resigning. Outside of the obvious influences, the claim is, “Once the rules are set and the players are named, the Pope should simply stay out of it.” People would throw an absolute fit if the Pope were to say, “I really think y’all [can you say y’all with a German accent?] should look at that Burke guy, or maybe the cardinal from Sri Lanka.” I can hear it now, “How could he! This is so irresponsible. The decision should be left with the cardinals, and the pope-emeritus should not try to meddle with it.” And yet I don’t think it is that simple.
First, in the secular world this happens all the time. Sitting presidents and former presidents often endorse replacement candidates, both in primaries and general elections. (How I wish President Obama would have endorsed a replacement candidate.) It is such a normal part of politics that one never hears cries of “tampering” or “meddling,” even from within the political parties during the primaries. In fact, the media waits with baited breath to hear who a particular political figure will endorse.
Why is it different for the Pope? Why would it be so tragic if Benedict were to endorse a particular cardinal? It certainly wouldn’t invalidate the election. While he is pope, he certainly has the right to direct the future of the Church, and as we have seen he has the explicit right to decide how the next pope is named. The media’s notion that the pope has no right to influence the next pontificate is both a double standard that they don’t apply to any other election and, quite frankly, is an absurd misunderstanding of the role of the sitting pontiff. Of course the pope has the “right” to do so. In fact, it is an explicit right granted to him by Church law. (By the way, I have a feeling that if the Pope were to endorse a Cardinal Mahony or a Cardinal Danneels, the American media would miraculously lose their objection to meddling and applaud the pope for his courage. The media objects to the pope’s influence only because they know what that influence means.)
But shouldn’t the election of the Pope be the result of listening to the Holy Spirit? The answer is emphatically “yes,” but it also requires an understanding of how the Holy Spirit works. More often than not, the Spirit works through the thoughts and actions of men. This is why it is no contradiction to say that the Holy Spirit works through the conclave process even though it involves fallible men casting votes. (Let us not forget, however, that the Spirit can only work if the cardinals themselves are open. This is precisely why we pray for the cardinals. There is a guarantee that the Holy Spirit will speak, but there is no guarantee that the Cardinals will listen.) Who is to say that the Spirit, who is quite capable of working through a body of electors, is not also capable of working through a current pontiff? Perhaps the Spirit wants to work through a current pope specifically endorsing a candidate, or dare I say it, even naming a candidate and getting rid of the entire conclave process. As absurd as it sounds, this is exactly why “it is in fact an indisputable principle that the Roman Pontiff has the right to define and adapt to changing times the manner of designating the person called to assume the Petrine succession in the Roman See.”
In 2005 the media did a fabulous job of putting forward liberal candidates to replace Pope John Paul II. In fairness, they had a mixed slate of candidates that spanned the theological and political spectrum’s. In doing so, they gave an exaggerated picture of a mixed college of cardinals. On the far left was a cardinal from Belgium named Cardinal Godfried Danneels. Cardinal Danneels was appointed a cardinal in 1983 by Pope John Paul II. In the course of his career, the cardinal has urged a decentralized church that relies more on consultation with the world’s bishops. He has promoted a more flexible approach to pastoral and doctrinal problems, suggesting a rethinking of issues ranging from the shortage of priests to the status of divorced and remarried Catholics, as well as the Church’s way of evangelizing, ecumenism, collegiality, the possibility of ordaining married men, world peace, ecological responsibility, and the relationship between rich and poor countries. He once said that the Church must take its proper place in society “with its witness, its message and its commitment to the poor. Everything else is decorative.”
He did, however, have an ironic prediction which turned out to be accurate in its content though inaccurate in its subject. Cardinal Danneels was among the first to say that he believed Pope John Paul II would resign for the good of the church if he were unable to bear the burdens of the papacy. As we know, no such resignation occurred, at least for Pope John Paul II.
Several people have been asking who I would like to see elected once Pope Benedict steps down. This is always a delicate question, for numerous reasons. First, it is quite clear that I do not, nor should I, get a vote. Whatever opinions I hold are simply that: my opinions and hopes. Second, should someone “off my list” be elected, I would not want people to think that I “disapprove.” Just like everyone else, I have various qualities that I would like to see in the new pope, but I also will pledge my undying fidelity and unceasing prayers to whoever occupies the Chair of St. Peter. Third, if the last several elections have taught us anything it is that old adage rings true: “He who walks into a conclave a pope comes out a cardinal.” In other words, these things are notoriously difficult to predict.
Nevertheless, because I am human and because I get all geeked out about these things, it should come as no surprise that I have “a list.” Before we get to it, however, it is worth giving you (1) the criteria the media seems to be using for choosing contenders, (2) my sense of the criteria that the cardinals will actually use, and (3) the criteria I am using.
Along with one billion other Catholics, I have been consumed with reading about and thinking about the news of yesterday. After getting over the initial shock and having some time to reflect on the weeks ahead, I have noticed a trend among many Catholic commentators. It is best summed up with the recently re-popularized British World War II slogan, “Keep Calm and Carry On.”
Granted, the slogan is often accompanied by sound theology, typically phrased as, “The Holy Spirit will guide the Church through this,” or, “The Church will continue. We have the promise of Christ that it will survive.” All of this is true, of course. We do believe that the Holy Spirit will work through the conclave, and we certainly believe the the Church will stand the test of time and endure until the end. Nevertheless, I think it is slightly naive to think that there is nothing about which we should worry. On the contrary, I think there is quite a bit of legitimate concern. To understand this, however, we need to make a distinction between the supernatural virtue of hope in those things eternal and a natural hope in those things temporal.
Authentic Christian hope is the theological virtue by which we find solace, comfort, and confidence in the fact that the outcome of the spiritual war in which we are engaged is already known. Christ has conquered evil and death, and has done so definitively. We know where all of this is headed, and so there is no reason for despair. If we accept our vocation and work for personal holiness and the holiness of those with whom we have been entrusted, then we will assuredly play our part and will be welcomed into the victory that is the beatific vision.
While anxiously awaiting a response from the USCCB to the new “modification” announced by the Obama Administration on Take-Out-The-Trash Friday, I found myself looking back at the initial set of thoughts that I put together almost a year ago to date. I thought it worthwhile to revisit the concerns I had about the initial HHS Rule and the USCCB response to see if they still apply.
However, let me start with the term “accommodation.” My fear that our country has been employing a “Leap Forward, Hop Back” strategy with most contemporary issues is illustrated perfectly in this health care debate. The strategy is to make an absurd leap forward that is very difficult for a large portion of the population to swallow, and then to take a small hop back to “make up for it.” The long term impact of this is the rapid accumulation of the forward motion and the acceptance of it by the American people under the guise that those in power have “compromised” by taking the small hop backwards. What they forget is the the initial large step was no compromise in the first place. It is worse than the old frog-in-boiling-water lesson. You know the old wisdom: if you place a frog in boiling water it will jump out immediately, but if you place it in cool water and gradually increase the temperature, it will happily boil to death. While others have applied this old adage to the current debate, I think it is actually worse than what it seems. The “leap forward, hop back” is even more devious than the gradual-temperature-increase. Instead of slowly boiling the frog so that he doesn’t realize it, this strategy is like raising the heat on the frog rapidly and just before it gets to the point of jumping out, drawing the heat back a little. In this way, the frog not only boils to death without complaint, but it actually periodically thanks you for those brief moments of cool relief that you so generously offered.
The mere notion that the White House has “expanded the number of accommodations” to the HHS mandate is absurd in and of itself. Since when is an “accommodation” for religious purposes even necessary? The very language of “accommodation” makes the Administration seem so benevolent – it is the periodic cooling down of the frog. What is continually lost on the President and his supporter is that the fundamental right to religious freedom guaranteed in our Constitution is prior to the faux right to free “health care.” If the two were to be in conflict, it would be the latter that need accommodated, not the former. (Now would be a good time to cynically remind ourselves that the President is a Constitutional Lawyer.) The so-called “right to health care” is mentioned nowhere in the Constitution and should thus, under the Tenth Amendment be left to the States and be subject to those rights that are federally guaranteed, including those in the First Amendment. Notice that I am not saying that people should not have access to affordable health care, only that this is not the role of the Federal Government. This act of “generosity” by the Administration is nothing of the sort. It is essentially a concession that, “We promise to violate the rights of a smaller number of people than we intended before.” An accommodation should not be necessary as religious freedom is guaranteed to all citizens.
With that, let’s turn to my comments from a year ago. I made three points – the original text is in bold
1. Religious Liberty is an Individual Freedom.
It seems to me that the focus of the national Catholic conversation has been on the Obama administration’s violation of the freedom of religion by forcing Catholic institutions such as hospitals and universities to provide employees with contraceptives and sterilizations, a practice that is in clear contradiction to the teachings of our faith. While this is certainly deplorable and the most overt violation of the First Amendment, what has been relatively missing from the dialog is that religious liberty is not merely a liberty granted to religious organizations. First and foremost, religious liberty is an individual liberty. Each and every citizen of our nation is guaranteed under the Constitution the freedom to practice one’s religion both publicly and privately and to not be coerced into violating our consciences by acting in a way contradictory to the tenants of one’s faith.
Thus, the HHS rule is not simply a violation against specifically religious organizations. It is also a violation of the religious liberty of the individual business owner, Catholic or otherwise. As a Catholic, the owner of a private business cannot, under the Constitution, be compelled by the government to pay for “medical” services that violate his or her faith, including contraceptives and sterilizations. This applies not only to those companies that have a religious mission, such as EWTN or the Knights of Columbus, but also to the owner of a chain of restaurants, a manufacturing form, or an publishing company. Further, it also applies to the faithful Catholic owner of a medical insurance company. Forcing the insurance company to provide coverage for these services despite religious beliefs, is a clear violation of the protection guaranteed under the First Amendment.
My fear is simple. If the conversation focusses exclusively on those organizations for which Bishops have direct involvement, we may very well see further “compromise” between the Obama administration and the USCCB, but tens of thousands of other Catholic business owners will be lost in the shuffle. In fact, I will go so far as to say that even if the HHS does a complete 180 on the current issue, i.e. incorporating Catholic hospitals and universities in the exemption clause without the bogus compromise that forces the insurance companies to cover the costs and services … even then, the fight is not over. Because even then there will be thousands of businesses who are not included in the exemption clause because business activities have no specifically religious purpose. Yet these owners too have the right to practice their religion, and hence should not and cannot be compelled to act in a way contrary to their faith.
Looking back, my fear seems well-founded. The cynic in me believes that the Obama Administration is not offering a “compromise” but rather clearing the legal playing field of all competition. While I am not a lawyer, it seems likely that Notre Dame, EWTN, schools and hospitals may now be exempt under the revised accommodation and therefore not have standing in court. A more sophisticated legal analysis will flush this out, but it seems abundantly clear that the private for-profit business owner will still not be exempt and will be forced to violate their moral consciences. And the problem of the Catholic owner of a medical insurance company still remains a very large problem, hitherto unaddressed in the national conversation, for under the law they are forced to comply with this mandate in a manner altogether different, and more directly than the employer. (Here is where I would love to see the Knights of Columbus, who have a history in the life insurance industry, begin to offer medical insurance and refuse to sell plans that cover contraceptives and abortion services, if only to give them standing in court.)
I understand why the USCCB rhetoric focusses on specific arms of the Catholic Church (schools, universities, parishes, dioceses, hospitals, etc.), which presumedly was because these are the easiest legal battles to win. However from the perspective of moral philosophy, the emphasis seems misplaced. A moral conscience is something possessed by an individual. The reason why the mandate for a Catholic University is unjust has less to do with the fact that the institution is formally associated with the Catholic Church and more to do with the fact that the individuals who run it and make decisions of what health insurance to purchase are Catholics who feel that they cannot comply without violating the moral code. While an institution, religious or otherwise, can be said to have some sort of “collective conscience,” this is only by analogy to an actual conscience possessed by an individual. Further, it is the individual that is protected by the Bill of Rights.
Granted, the interference of the government in an official religious institution brings with it a whole different set of problems and violations of the Constitution, so I am not necessarily faulting the bishops on their focus on this aspect of the mandate. However, they will certainly need to revise their rhetoric, and they now risk looking like the “side that refuses to compromise with a very measured and reasonable President.”
2. There is a Silver Lining.
The felix culpa effect never ceases to amaze me. God can bring good out of the most heinous evils, the case and point being the crucifixion. The silver lining to the current HHS tragedy is the unified effort of the Catholic Episcopacy. While the thought that the Obama administration feels that it can abuse its power in this manner terrifies me, the response by the Bishops has given me great cause for joy. When the Bishop’s letter was read from the pulpit two weeks ago, the congregation applauded. It is a powerful moment for the Church.
In hindsight, while I still applaud the bishops for their effort, we now have the results of the national election to help frame their response. It is clear that the American political scene as well as the 50% of Catholics who still voted for President Obama that the bishops are not being taken seriously. I think that they have underestimated the effects of a decades-long silence, something that cannot be broken in a single election cycle. While they are to be commended for stepping up to the plate, they are not miraculously immune from the cement that has been allowed to dry and and cure for nearly half a century. They will eventually be able to break it apart, but it cannot be done in one summer. They will need to continue chipping away at this in order to regain credibility among the Catholic faithful. Until that happens – until an election can actually be influenced by the episcopacy – the Democratic party has no reason to change course, and the “leap forward, hop back” strategy will continue to be highly effective.
3. ”Health Care” is being Redefined.
My final point has been mentioned by several others, but it warrants reiteration. There is a not-so-subtle redefinition of “health care” in this whole debate. There is a certain amount of irony that under the president’s health care bill and the accompanying HHS ruling, I will not be able to receive Tylenol or toothpaste for free, but women will be able to receive birth control and abortifacients for free. Tylenol is a drug that actually tries to cure something that is “wrong” with the body, and toothpaste is authentically “preventative” in terms of dental health problems. Yet birth control and abortifacients have little to do with the health of the body. In fact, they are often used for reproductive systems that are otherwise heathy. They are designed to take a perfectly healthy and well-functioning bodily system and stop it from functioning how it should. Since when did fertility and pregnancy become a disease? Since when is birth control more “preventative” than toothpaste and abortifacients more of a “cure” than Tylenol.
Looking back, the Democratic party has been marvelous in recasting this issue. The Sandra Flukes of the world have become the mouthpieces for this rebranding. People genuinely believe that contraceptive services are a part health care. What is perhaps most amazing, however, is how the Obama Administration has not only managed to classify contraception as health services, but they have actually managed to give it a priority even over actual health care.
From what I understand, under the revised accommodation, if an employer is “generously” exempted from the mandate, the organization will be permitted to purchase a health care plan that does not include contraceptive services. In this case, however, the insurer will be required to offer a separate plan to the employees that does provide such services (and here’s the kicker) at no cost and with no copay. It continues to amaze me how the Administration has been able to convince the American people that something can actually be free. So long as a product involves resources, material or human, it literally cannot be free. So the question is: who is actually paying for the service? It won’t be the insurance company, for their bottom line will simply incorporate the cost into the original plan, or spread it out over everyone’s plans. We have then come full circle on the original problem: an exemption is an exemption in name only – the employer is still paying the cost of the contraceptives. It reminds me of the clothing company which advertises “buy one suit get one free,” when all they have done is to double the price of suits. So the consumer is still paying the same amount, but they have been coerced into purchasing two suits rather than one. (This, by the way, is illegal and considered false advertising, yet when applied to the HHS mandate it is seem as a “compromise.” Leap forward, hop back.
The real absurdity, however, is in the “no copay” clause. When I go to the doctor for pneumonia and get an antibiotic, we have a copay. When my kid gets a breathing treatment for his asthma, we have a copay. When my wife gives birth to a child, we have a copay. Yet under the Obama plan, contraceptives must be offered with no copay. Thus, not only have contraceptives been successfully cast as health care, but they have actually been cast as health care that is so essential that it should not even have a copay. It has been prioritized over those things that actually are clear examples of health care. So it seems that being able to have sex without consequences is more important than whether my three-year-old can breath properly.
The genius of this Administration lies in its rhetoric and manipulation. They have begun the conversation with such an absurd proposal, that most of the American people will now not only accept the compromise, but also applaud the President for his ability to “meet in the middle,” and all the while the main issues are being eclipsed by meaningless details. Undoubtedly, those of us, which may very well include the USCCB, who still find fault with the HHS proposal will be cast as ideologues unwilling to compromise. Indeed, I think the President very much had us in mind during his inauguration address when he said, “We cannot mistake absolutism for principle.”
The Democratic genius: leap forward, hop back.
In 2004, the State of Ohio became the thirty-seventh state to pass some form of concealed carry legislation, under which persons may carry concealed firearms. Shortly after, William Michael, an attorney from Columbus published an article in the Akron Law Review. His thesis is simple. While some gun rights advocates endorse concealed carry legislation, this demonstrates how far we have come from the original intent of the Second Amendment. “Given the Second Amendment to the United States Constitution, such legislation appears unnecessary since individuals have a constitutional right to carry firearms.”
Mr. Michael lays out a simple and logical argument in three steps. After reciting a litany of positions contrary to the idea that every American has the right to own a firearm, the Columbus lawyer begins his own argument by examining the actual text of the Second Amendment.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
The text itself suggests two fundamental questions. (1) What is the right protected? (2) Whose right is it? Regarding the first question, a plain reading of the text indicates that right being protected is the “right to keep and bear Arms.” Regarding the second question, the text indicates that it is specifically “the right of the people.”
As simple as it sounds, this is a critical starting place because it is not uncommon for legal scholars to claim that the right protected under the Second Amendment is a collective right that only belongs to “the Militia,” which moreover is given existence only after being organized by the State. Thus, “who” is protected under the Second Amendment is only organized Militia, and in some authors’ legal analysis only those Militia that are organized by the State.
Michael offers several arguments in addition to the straightforward language of the Amendment itself. First, the meaning of “the people” as individuals has never been questioned in the FIrst, Fourth, Ninth, or Tenth Amendments, so there is no reason to question it in the Second. Thus, even though scholars and courts have argued that the Second Amendment protects only the rights of States or collective rights of certain groups, “collective rights are antithetical to the familiar notion of individual rights in the United States. They very inclusion of the right to keep and bear arms in the Bill of Rights indicates that the framers of the Constitution considered it an individual right.” The Bill of Rights is a clear listing of individual rights, and since the Second Amendment is included in this document, the phrase “the people” should be interpreted in a manner consistent with the rest of the document. That is to say, if the understanding of “the people” in the First, Fourth, Ninth, and Tenth Amendments is individual Americans, then so too should the phrase be interpreted in the Second Amendment.
Of course, some will still adamantly argue that the inclusion of the clause “a well regulated Militia, being necessary to the security of a free State” is enough to mitigate the definition of “the people.” Yet the whole tenor of the Bill of Rights, as well as similar grammatical structures found throughout the Constitution, dictates that we understand this clause not as a modifier to “the people” but rather to be an indication of why individuals have the right to keep and bear arms.
There are also contrary opinion of how to understand the phrase “a well regulated Militia.” Jack Rakove (cited by Michael) asserts that “any reader of Article I, Section 8 [which empowers Congress to call forth the Militia to execute the laws of the Union, suppress Insurrections and repel Invasions] would find it hard to deny that the text there considers the militia not as an unorganized mass of the citizenry but as an institution subject to close legislative regulation” (emphasis added). However, Michael levels two criticisms against this. First, the clause suggests that the militia exists before being called to defend the country, and therefore individuals do not become a militia only when employed and organized by the country. Second, Article I, Section 8 also gives Congress the power to “provide for organizing, arming, and disciplining, the Militia,” which indicates further that the Militia exists before organization, otherwise the power to organize and discipline it would be superfluous. Finally, because the Tenth Amendment already delegates the power to maintain state militias (because is is expressly not delegated to the federal government), a reading of the Second Amendment as one that gives States the power to organize militias would be redundant and unnecessary. Clearly something else must be going on the Second Amendment, which is precisely the individual right to keep and bear arms.
The second step in Michael’s argument is to examine the intent of the Framers of the Constitution. Madison’s original version, which he proposed to be put in Article I, Section 9, read: “The right of the people to keep and bear arms shall not be infringed; a well-armed, and well regulated militia being the best security of a free country.” The revision cycle that the Article went through demonstrates that the intent, which in its original wording clearly spells out an individual right, does not change with the reordering of the clauses. The very fact that Madison wanted to place this in Section 9 is even more evidence, for this is one of the few places in the original Constitution that protects individual rights. Further, the Senate rejected a proposal to add the phrase “for common defense” after “to keep and bear arms,” which demonstrates that the Senate did not want to narrow an individual’s right to keep and bear arms to only those situations that provide for the “common defense.”
The context in which the Constitution was written also demonstrates the Founders’ intention of maintaining an individual right to keep and bear arms. They were quite skeptical of government’s potential to become tyrannical, and they believed that an armed citizenry would protect against such tyranny. Perhaps the most entertaining line of the Michael article comes at the end of this section: “Daniel Polsby once asserted that no ambiguity at all surrounds the attitude of the constitutional generation concerning the right of the people to keep and bear arms. To put the matter bluntly, the Founders of the United States were what we would nowadays call gun nuts.”
The final step for Mr. Michael is to examine the right to concealed carry as a right protected under the Second Amendment and therefore in no need of State legislation. The argument boils down to the deliberate distinction between “keep” and “bear.” To “keep” arms means to have passive, custodial possession of them, such as keeping them in the house. To “bear,” however, implicates a more active conduct, which suggests the “active, exhibitory use of arms.” Michael offers examples such as “he came bearing gifts.” Thus, there are two rights being spelled out in the Second Amendment, the first being the right to essentially own firearms, and the second being the right to carry them, which Michael extends to concealed carry.
The author laments that much of the dialog and scholarship about the Second Amendment devolves into questioning authorial motives and a debate over the Constitution as a document that is “living” or one that is to be read in accordance with the original intent. However, “such critiques reveal a weakness in the argument of those opposed to gun ownership – if the text and history of the Second Amendment supported their position, they would not resort to the living constitution argument.”
I will let Mr. Michael have the final word:
Concealed carry statutes appear to presuppose that individuals cannot carry concealed weapons but for the statutes. As described herein, such a presupposition may be inconsistent with the Second Amendment’s text. If it is, concealed carry statutes should be viewed as regulation of the preexisting, constitutional right to carry concealed weapons and, accordingly, should be subject to judicial scrutiny with the same level of vigor as any other statute regulating a constitutional right.
I read. I read a lot. I like to think that I have a decent working knowledge of contemporary discussions within the Church. And yet more often than not, I am humbled when I run across a topic or debate that has been ongoing for years, but I am just now reading about it. It just goes tho show that the more a man knows, the more he knows how much there is that he doesn’t know.
It happened most recently this past weekend. I got wind of a debate about the permanent diaconate and decided to read up on it, when what to my surprise, the debate is almost a decade old. Of course I knew that there have been several contentious conversations surrounding the topic of the permanent diaconate. One the one hand, some have never fully accepted its reinstatement. One the other hand, enthusiastic proponents of the institution refuse to recognize the complications and confusion that come from a married man with one foot in world of clergy and the other in the world of the laity. For my own part, I readily recognize that Holy Mother Church has granted us the reality of the permanent diaconate, and I thus take an initial posture of humility and obedience. And yet the whole thing has always been a bit confusing for me. When some have suggested that I pursue the diaconate, I have had trouble reconciling the “dual vocation” nature of the whole thing. Perhaps this is indicative of the aforementioned confusion, or perhaps it simply means that I am not called to such a state in life.
Nevertheless, there is a particular debate regaining some steam based on a Canon Law article from the well-known canon lawyer, Dr. Edward Peters. The article was written back in 2005, but I get the impression that he has been defending his thesis ever since. As I stated from the start, for whatever reason, I am just now getting wind of it, and I have to admit that topic is fascinating, which probably speaks more to my being a geek than it does to the topic itself. The question is simple:
According to Canon Law, when a married man is ordained a deacon, must he refrain from martial intercourse for the rest of his life?
The question itself is provocative, with my initial reaction being, “Well, of course not.” In fact, it was provocative enough that I thought of titling this post something like, “Deacons and Sex,” just to see if it would generate more hits. I took the high road, however.
I immediately read Dr. Peters’ article, and I have poured through many of the irate responses written since 2005. When all is said and done (though I suppose this matter remains somewhat open, so all is not in fact said nor done), I have three observations to make. First, Dr. Peters is on to something. His argument is compelling, cohesive, and comprehensive. Second, most people are mischaracterizing Dr. Peters’ argument. Third, those that are responding to Dr. Peters have not yet provided a reasoned response. This of course doesn’t mean that one is out there yet to be discovered and/or written; it simply means that I have not yet found it.
Clerics are obliged to observe perfect and perpetual continence for the sake of the kingdom of heaven and therefore are bound to celibacy which is a special gift of God by which sacred ministers can adhere more easily to Christ with an undivided heart and are able to dedicate themselves more freely to the service of God and humanity” (CCC 1983, c. 277).
Note first that deacons most certainly fit the definition of “clergy,” and so they are seemingly included in this call to “perfect and perpetual continence.” (Recall that this means the refraining of sexual activity.)
1. There is a deliberate distinction between celibacy and continence: both are mentioned for good reason. In the case of the married deacon, celibacy (refraining from being married) is not applicable by the very definition of celibacy. In the case of a priest, continence is redundant. (By the moral law, any many who is not married would be bound by continence.) Thus, the canon seems to be stressing both celibacy and continence separately, and in its wording holds continence as the “higher” good that is surrendered, with celibacy being presented as a secondary good.
2. The first point is made clearer by reference section 2 of this same canon (#277): “Clerics are to behave with due prudence towards persons whose company can endanger their obligation to observe continence or give rise to scandal among the faithful” (emphasis added by Peters). Here there is a mention of continence, but not of celibacy.
These two points serves to illustrate that continence and celibacy are two separate concepts, and they are not necessarily joined together in all cases.
3. Canon 288 specifically exempts permanent deacons from a variety of obligations (such as the inability to hold political office and the requirement to wear clerical dress, among other obligations), and it makes no attempt to distinguish between married and non-married permanent deacons. There is no mention of continence among the exemptions.
4. Canons 1042 and 1037 deal with the exemption for celibacy among permanent deacons. (1037 is where we find the requirement that unmarried men who become ordained to the diaconate are bound not only to continence, but also to celibacy; that is, they cannot get married.) Neither canon specifically dispenses the permanent deacon from the requirement to observe continence.
These two points serve to illustrate that Canon Law has ample opportunity to specifically exempt married deacons from the requirement of continence, but in fact does not.
5. Canon 1031 requires that a married man obtain the consent of his wife before being ordained to the diaconate. Peters argues the fact that spousal consent is required provides a strong argument that the intent of Canon 277 is that married deacons are bound to continence within their marriage. He asks, “To what is the spouse consenting, and why is her consent necessary?” Peters argues that if the consent is not because of the required continence, then no-one has been able to provide a reasonable answer to its necessity. Vague attempts are made at claiming that the wife is consenting to the pressures that may be put on the marriage because of this new commitment, but Peters sees these arguments as quite weak: in no other Sacrament does one need the permission of the spouse in order to receive it. One does not, for instance, need to permission of a non-Christian spouse in order to receive Baptism, even thought this could very much put pressure on the marriage. The requirement of spousal consent would only make sense if the wife was being asked to forgo one of her own rights guaranteed by her state in life, i.e. the sexual union with her husband.
6. The 1917 Code of Canon Law does not distinguish between the requirement of continence and the requirement of celibacy (no such distinction would have been necessary since all clergy was to be unmarried, and all unmarried men, regardless of particular state in life, are called to continence by the moral law). Yet available commentators on the 1917 Code, in discussing dispensations from the Vatican for married clergy, were unanimous: a married man who is ordained would be required to forego sexual relations with his wife. This is important because in reinstating the permanent diaconate, Pope Paul VI said explicitly, “We must confirm all that is said in the  Code of Canon Law about the rights and duties of deacons, either those rights and duties which they have in common with all clerics or those proper to themselves, except where We here state otherwise, and We decree that these rules are to apply to those whom are to be permanent deacons as well.” The exemption from celibacy is “state[d] otherwise,” and yet nowhere is there an exemption from continence. This, it seems that the intent of the Holy See at the time when the permanent diaconate was reinstated was explicitly not to remove the exemption of continence from married deacons.
7. The final argument comes from the revision history of the pivotal canon 277. Peters notes that the paragraph underwent two signifiant changes. The first version had the following statement immediately after the first section. “Men of mature age, promoted to the stable diaconate, who are living in marriage, are not bound to the prescription of section 1 [which imposes both celibacy and continence]; these however, upon the loss of their wife, are bound to celibacy.” What is significant here is that the language is vague enough to suggest that all of canon 277 section 1 would not apply to married deacons. It seems to dispense with the entire section, which could then be read as exemption married deacons from both celibacy and continence. The second version revised the very same sentence as, “Men promoted to the permanent diaconate, living in marriage, are not bound to the prescription of section 1.” This is even more vague as it seems to not only exempt married deacons from continence, but could also be understood to allow a deacon to re-marry upon the death of his spouse. What is significant here is that neither version of the sentence made it into the final promulgated Code of Canon Law. The history suggests that the authors knew that these statements were vague and could be misconstrued to exempt marriage deacons from continence.
These three points positive evidence that the intent of those writing the canon was to specifically retain the requirement of continence for married deacons, (the first being the reference to Pope Paul VI found above).
After this (not so) brief review, I think it is important to state clearly what it is that Dr. Peters believes, but more to the point what he doesn’t believe:
A. The 1983 Code of Canon Law, after careful examination from a variety of angles, imposes upon married men who want to be ordained as permanent deacons a requirement of continence. That is, married men who are ordained to the diaconate are to refrain from sexual relations. Such a drastic requirement is precisely why spousal consent is necessary.
B. [CURRENT DEACONS, PLEASE READ.] Those who have been ordained to the permanent diaconate already and have not been made aware of this requirement are not bound by it. Under Canon Law, no one can be bound to surrender a right unless they were made aware of it at the time of their ordination.
It is important to note that Dr. Peters very much sees the current situation as one that is irregular. What’s more, he doesn’t even seem to take any one specific position on how to rectify it. More to the point, I cannot find anywhere that he suggests that married deacons should have imposed on them a requirement of continence. He is simply stating that Canon Law does in fact make such an imposition.
Peters offers four solutions for rectifying the current situation: (1) reaffirm the unbroken tradition of continence for all clerics, including married deacons – from this point forward begin enforcing the requirement with newly ordained men, (2) reaffirm the practice for priests, but abandon it for married clergy, (3) change the requirement to a temporary continence for married clergy, or (4) abandon any expectation of continence for married clerics.
Dr. Peters’ thesis is simple: practice and Canon Law are not in conformity. One of the two (or both) needs changed. Either rewrite or otherwise clarify the current Code or change the practice to confirm with the Code. Those who have come out in violent opposition to Dr. Peters seem to have missed this point. While I am sure that Dr. Peters has his own personal preference within the four options, I cannot find anywhere that he oversteps his bounds as a canon lawyer: he merely states that something needs done, and he offers the list of possible solutions.
Finally, we have the various attempts at debunking Peters’ argument. Most of these are not worth considering, as they have missed the point altogether. Some have attempted a historical study on the presence of married clergy within the Church, but this is altogether irrelevant. Peters is making an argument from Canon Law. Whether married deacons were required to observe continence throughout all of history is not relevant; Peters is claiming that they are required to do so now.
Others has cited the widespread ignorance of the law itself as proof of Peters’ erroneous reading. In other words, “Surely if thousands of married men have been ordained by bishops without knowledge of this requirement, something must be wrong. Surely Peters’ reading must be erroneous.” The problem here is (1) there is no attempt at why canon 277 should not be read according to Peters, but only states that it is “not being read according to Peters,” and (2) Peters himself has nowhere suggested what the practice should or should not be, only that it is not in conformity with Canon Law.
The only argument worth dissecting is the one that claims an implicit exemption from continence based on the explicit exemption from celibacy. In other words, it is clear that married men (by definition) are exempt from celibacy. Further, because part of being married included the natural right to engage in marital intercourse, the exemption from continence is implied. First, this is quite weak. Peters goes to great lengths to (1) show the numerous places where the exemption could have been made explicit but is not, and (2) offer at least three positive arguments for the intent of retaining the requirement of continence (the necessity of spousal consent, the explicit intent of Paul VI in reinstating the permanent diaconate, and the history of revision of canon 277). The whole of this counterargument seems to be, “I don’t like this requirement, so I am going to claim an implied exemption.”
There is one author that has at least attempted a logical argument similar to this. He begins by stating that the canon is equivalent to a logical if-then statement. (I’ll spare you all of the formal logic language.) He then offers what is a well-known law of logic: the law of contrapositive. The law of contrapositive states that “If p then q” is logically equivalent to “If not q then not p.” We can see this by example. The statement “If a number is greater than 2, then then number is positive” can be re-written as, “If a number is not positive, then it is not greater than 2.” The author then proceeds to go through canon 277. He claims that “Clerics are obliged to continence and therefore are bound to celibacy” is equivalent to, “Clerics who are not bound to celibacy are not therefore obliged to continence.” The author then applies the latter to married deacons.
This seems to have merit on the surface, and yet one feels a sleight of hand, or perhaps a sleight of words. His argument only works if canon 277 intends to present a true logical if-then statement. In other words, it only works if (1) canon 277 can be rewritten as, “If a cleric is obliged to continence, then he is obliged to celibacy,” and (2) this if-then statement is true. Regarding (1), this is debatable, as the example below will illustrate. Regarding (2), it is simply a restatement of the very issue at hand. Dr. Peters says that the expressed exemption of deacons from celibacy later in Canon Law is precisely the counter example that renders such a statement false. In fact, notice the careful rewording of the contrapositive above: it no longer speaks in terms of absolute requirements, but it instead uses the relative pronoun “who.” A more accurate contrapositive would be, “Clerics are not bound to celibacy and therefore are not obliged to continence.” If the author is correct, then it would seem to imply much more than married deacons being exempt from continence and celibacy, but rather all clergy. This is clearly not correct.
Finally, we can see a parallel in the Confiteor in which we profess, “I have greatly sinned, and therefore I ask Blessed Mary … to pray for me.” It is because I have sinned that I ask others to pray for me. The author above would have us believe that this is equivalent to saying, “Those who do not ask for the prayers of others have not sinned.” This is clearly false and it comes not from an error in logic, but from an imprecise translation of an English statement into formal logical statements. In other words, “therefore” (or “because of this”) as used in the English language is not equivalent to the “If … then …” of formal logic.
Of course, one thing that could resolve this debate is some clarification form the Vatican. I have not yet been able to find any, but I am happy present it if someone wants to pass it my way.
* * *
I intended this to be short – I have failed miserably.
The ongoing health care debate, specifically the mandate by Health and Human Services that Catholic employers provide insurance coverage that includes artificial contraception, has spurned a renewed discussion of basic human rights. On the one hand, the Catholic Church claims that the fundamental right to religious freedom is being violated by the current administrative order. On the other hand, the government claims that people have the right to basic affordable health care, and that an employer who refuses to provide services that fit the definition is in violation of this right. The Church then rejects the idea that contraception is part of “basic human health care.” The administration disagrees. And the conversation hits a stale mate. The whole debacle fails precisely insofar as it ignores the discussion of rights in general. The discussion, rather than being stranded in a limbo of competing “rights,” should begin by revisiting the very question of rights themselves. What is needed is a complete rethinking of this question, and in some way, a return to a past that was not marred by the modern rights language that has led to this whole debate.
Perhaps the most adamant proponent of the position that rights have no real place in medieval or ancient philosophy is the French jurist Michel Villey. While Brian Tierney1 has called his work “idiosyncratic,” there is no doubt that Villey has made great contributions to our understanding of legal history.
“The modern idea of subjective rights, Villey asserts, is rooted in the nominalist philosophy of the fourteenth century, and it first saw the light of day in the work of William of Ockham. Ockham inaugurated a ‘semantic revolution’ when he transformed the traditional idea of objective natural right into a new theory of subjective natural rights. His work marked a ‘Copernican moment’ in the history of the science of law” (Tierney, page 14).
Villey begins his presentation by examining the Latin word ius, which roughly translated can mean “right.” However, in the classical world, ius was never a power possessed by an individual, as in the right to own personal property. Rather, to the classical mind, ius was a thing, a legal thing in fact. It was the proper end to the virtue of justice. It was that reality towards which a jurist strives. Villey’s somewhat well-known example comes from the writings of Gaius. The ancient legal writer speaks of a ius altius tollendi, or “the right of building higher.” This is in reference to the right of raising a house and blocking the lights of a neighbor’s house. At first glance, it seems that Gaius is in “Locke” step with the modern understanding: a man has the right to add to his house if he so desires. This might be true but for the subsequent ius non extollendi. What could it mean to have a right not to build a house higher lest a neighbor’s house be blocked? Rather than seeing a right as something inhering in a subject (in this case a homeowner), Gaius is simply pointing out the obvious: in some cases what is fair and just (“objectively right”) is for a homeowner to add a story to his house, while in other cases what is fair and just is the opposite. It is the role of the judge to exercise the virtue of justice in specific cases. The object of his decision is ius, “the right.”
Ius, as the root of the word justice, is first that which is rendered as the object of justice, or the just due given to an individual, rather than a power enjoyed by a particular subject. This is why Ulpian, when speaking of suum ius cuique tribuere (“to render each his right”), gives the example a parricide who had the “right” to be sewn up in a sack of vipers and thrown into the Tiber. This is hardly the kind of right envisioned by modern human rights commissions. As Ralph McInery2 puts it, “It is difficult to imagine a Human Rights Commission coming to Lizzie Borden’s aid to insure that she be given her rightful sackful of snakes and a dip in the river.”
Aristotle understands the term ius (dikaion in Greek) in two ways. The first is as the object of a virtue, an act proper to the human person. The other is as an “objectively right state of affairs” (Tierney, page 22). Neither of these are equivalent to the modern concept of inalienable rights possessed by an individual subject. Much of this stems form the fact that Aristotle sees the universe as ordered towards a particular harmony. It is the virtue of justice that brings about this harmony. Human society, too, is intended to be ordered towards this harmony, and it is the moral virtue of justicethat allows humanity to accomplish this. For Aristotle, then, and we will see the same thing in Aquinas, ius is defined primarily as a thing in terms of relationship rather than a personal power held by an individual.
“The just, what’s fair, the dikaion or iustum is a thing, a relation or proportion, out there, to be objectively determined by the judge so that the contentions of the parties to a suit are adjusted” (McInery).
It should be noted here, as pointed out by Tierney, that Villey criticized many of the early Christian Church Fathers, who he saw as distorting the classical sense of ius into something of a divine command, effectively equivocating it with lex (law). In Villey’s opinion, it was Aquinas who rescued the concept. “[Villey] thought that one of the great achievements of the Dominican master was to restore for a time the objective, classical meaning of ius, a meaning that would be lost again by Ockham and the nominalists” (Tierney, page 23).
Villey is not alone in his critique of subjective rights. Alasdair MacIntyre3 too has expressed reservations about their existence. MacIntyre’s argument is different though. He claims that the existence of a right apart from human relationships conceives of a human person existing prior to such relationships. But for MacIntyre, such an individual does not exist. All human persons exist within a particular social narrative. In other words, the human person does not exist apart from social relationships. Even in traditional natural law theory, we are talking about man in relationship, specifically in relationship to God. This is why the virtue of justice (what is “right”) is a virtue of relationship, not a particular power possessed by an individual.
“Lacking any such social form, the making of claim to a right would be like presenting a check for payment in a social order that lacked the institution of money” (MacIntyre, 65).
Aquinas continues the work of Aristotle, though as expected, he frames everything within a Christian perspective. Like Aristotle, ius is a thing for Aquinas, not a power possessed by an individual subject. Aquinas sees it as either quod iustum est (what is just) or ipsam rem iustam (the just thing itself). Even in his derivative meanings of ius we find nothing of a subjective definition.
While there is always the danger of pulling a particular question from Aquinas out of context from the holistic structure of the Summa, we feel fairly safe in examining Question 57 from the Secunda Secundae as representative of Aquinas’ presentation on ius.
The first article addresses whether or not “right” is the object of justice. From the start it is clear that Aquinas’ answer is the affirmative. In one of his replies, he outlines the three uses of the term. “The word ius was first of all used to denote the just thing itself, but afterwards it was transferred to designate the art whereby it is known what it just, and further to denote the place where justice is administered [a court of law].”
As a side note, the last definition provides some insight into how Thomas might envision a “court of law.” In continuity with his ancient forerunners, it seems to me that the place where justice is administered and the manner in which it is administered would look very different from the modern court (at least at the highest levels) of law focussed around rights and their violations. “The task of the jurist is to establish just relationships among persons and between persons and property – not to affirm absolute rights, but to determine what is objectively right” (Tierney, page 21).
Nowhere is a “right” presented as something possessed by an individual subject. In fact, while ius is framed in terms of relationship (justice, after all is a virtue of relationship), his presentation focuses more on the moral agent and how to act rather than a claim made by the agent. In other words, Aquinas’ conception of right looks more like an imperative placed on the moral agent, i.e., “it is right to not take the property of another,” rather than some sort of entitlement claimed by a subject, i.e., “I have the right to possess personal property.” As with anything framed in terms of virtue, the presentation propels man towards good action rather than allowing him to rest on the laurels of some preexisting entitlement. This is all to say, ius is known primarily as belonging to a relationship among parties and as the object of an obligation imposed by natural law. From the perspective of the moral agent, it is not something I claim for myself. It is instead something that directs my actions toward the virtue of justice. Further, as a virtue, ius must be learned and developed in habit. In this way ius is not self-evident as is claimed by post-enlightenment “self-evident truths.”
While Aquinas doesn’t draw out this distinction, which serves to indicate that the modern sense of the term right is unknown to him, his examples throughout the question make his position clear. For instance, a husband’s ability to beget children to his wife is an example of what is naturally “right.”
For Villey, however, it is not enough to point out the lack of connection between the modern theory of rights and ancient/medieval philosophy. He also argues against the very existence of rights in the modern sense. Villey describes three fundamental problems with the modern formulation. It is Utopian, arbitrary, and sterile. We turn to Tierney once again:
“It is Utopian because the supposed absolute rights are fictions; they usually do not exist in actual law or in real life. Rights theories are arbitrary because the rights claimed are ultimately based on subjective whim; they lead on to a debased understanding of justice as ‘nothing but a label you attach to your own subjective preferences.’ And modern rights theories are sterile because they cannot form the basis of a coherent jurisprudence. The rights that people assert conflict with one another” (Tierney, page 21).
We begin with the notion that modern rights are Utopian. In this claim, Villey questions the very existence of rights seen as a subjective powers held by individuals. Consider as a first example the claim of a right to religious freedom. Worship, as understood by Aquinas, is a virtue of justice. It is rendering unto God what it due to God. Thus, worshiping God as God wants to be worshiped is the “right” thing to do. But man emphatically does not have the “right” to worship how he sees fit anymore than man has the “right” to worship a God other than the one true God. In other words, as with any moral situation, man does not have the “right” to act wrongly, to act contrary to objective truth. Freedom of religion, posited as an inalienable right, implies that man, according to his nature, has the either the right to worship God, or not to worship God, or to worship a god that is something other than the one, true God. The problem is that only the first of the three is an exercise of justice. Since ius (right) is the object of justice, only the first of the three is, classically understood, “right.” Lest I be misunderstood, we might agree that the best way to organize society is to prevent government intrusion into religious decisions. We might agree that the more prudent course of action is to separate the exercise of religion from the State. We might even agree that the best course of action is to allow man to discover and adhere to the truth of being unimpeded by human authority. Thus, we could support a legal right to religious freedom. We could even agree that prudence dictates a teaching motivation by proposition rather than imposition. It is something altogether different to claim an inalienable right to religious freedom, which somehow suggests that man is entitled to believe whatever he wills, even if those beliefs are models of untruth. In fact, seen in light of Aquinas and the ancients, man does not have the “right” to worship how he sees fit. He only has the right to worship as God sees fit. Anything less is a violation of the virtue of justice.
Even that most fundamental right championed by our Constitution’s Preamble, the right to life, is worth examining. Does man have an inalienable right to life? If so, is God in violation of this right when he takes a man’s life? Seen through the lens of virtue, we can emphatically claim that it is a grave violation of justice for one man to take an innocent human being’s life. Yet from the perspective of the divine, God has given us our life gratis, and when he decides that our time on earth is done, it is well within the bounds of justice for him to end that life. In fact, given that the wages of sin are death, the entire Paschal mystery is an act of mercy and grace that transcends the virtue of justice.
Second, Villey claims that the modern presentation of rights is arbitrary. It will inevitably lead to moral relativism, and the right to religious freedom is case in point. If man has an inalienable right to religious freedom, then by what measure do we evaluate religious truth? If the right is inalienable, then the exercise of the right to pursue something objectively true is indistinguishable from the exercise of the right to pursue something objectively false. Further, there is no mechanism by which we can decide whether or not a particular claim actually is a right. Some authors, McInery included, have tried to ground the concept of rights in the natural law tradition. Granted, if we are to adopt a rights-language, then it must be grounded in the nature of the human person. However, the nature of the human person includes being a creature, which brings us back to the first point: as creature, we do not possess any power by way of entitlement, but rather by an act of grace.
Third, Villey notes that modern rights are essentially sterile, that they cannot form the basis of a coherent jurisprudence. When rights are seen as objective, inviolable powers possessed by individual subjects will inevitably lead to competing rights. This makes sense if “I have the right to x” is indistinguishable from “I desire x.” What I want will inevitably come into conflict with what someone else wants. The most recent example of this is the one with which I opened: the conflict between the right to religious freedom and the right to affordable health care. Yet we could brainstorm countless hypotheticals in which two rights come into conflict. In the perennial paradox of the father who steals bread to feed his family, the right to own personal property conflicts with the right to life. The right to bear arms conflicts with the right to a safe environment. In the classic case of the crowded theater, the right to free speech conflicts with the right to safety. Even the most fundamental rights can come into question. The abortion debate is essentially a debate about the right to life conflicting with the rights that women have over their own bodies. In fact, there are even cases where a right can come into conflict with itself. Take for instance the right of a parent to educate their kids in the way that they see fit. If Parent A’s ideal educational environment is in the home, but Parent B’s ideal environment includes being in a classroom with all the neighborhood kids, including Parent A’s kids, we have a conflict. There are only two ways to resolve these conflicts. The first is to prioritize the rights, which is essentially what most modern systems of jurisprudence do. Yet this contradicts the very definition of rights as inalienable. The second is to question whether one or both of the claimed rights are in fact rights in the first place, but then we have come full circle to the first issue. Rights discussion will necessarily come to an abrupt halt when such conflict arises, and the conversation is rendered sterile.
We should pause here to recognize that the Church has, in modern times, adopted the language of rights in some of its teachings. “As a devout Catholic, Villey could not have missed the way in which such documents of Vatican II as Gaudium et Spes and so many other magisterial documents employ without hesitancy the language of human rights” (McInery). While I would never want to presume to question the prudence of the Church in her official statements, I will simply point out two things. First, the manner in which the Church uses the term “right” is founded on the Thomistic notion of natural law. Utterly absent from its discussion are any hints of moral relativism. Second, the infallible truths of our faith in no way rely on the language of natural rights, and can all be framed in terms of natural law. In other words, rights language is in no way necessary for the Church. Quite the contrary: she functioned perfectly well for 1500 years with it. This would be the fourth adjective that I would add to Villey’s critique of modern rights language. It is quite unnecessary for a functioning system of jurisprudence. History has produced thousands of years of political organization without the need of subjective rights. It is helpful to repeat that the modern notion of rights was utterly absent from political philosophy until Ockham’s innovations.
In fact, the Church herself, while recently more sympathetic to the notion of rights language, has also issued extreme caution. Pope Pius VI called attention to this very problem when decrying the madness of the 1789 Declaration of the Rights of Man. He said, “This absolute freedom is established as a right of man in society. It not only guarantees him the right to no be disturbed because of his religious opinions, but it also gives him license to think, speak, write, and even print with impunity everything which the most unbridled imagination can suggest about religion. It is a monstrous right which seems nonetheless to the Assembly to result from the innate quality and freedom of all men … a chimerical right … contrary to the right of the supreme Creator.”
Without rights, then, what does the moral conversation look like? That is, if we don’t cling to something like religious freedom, how shall we frame our response to the HHS mandate? More specifically, if we dispense with the language of natural inalienable rights, will the conversation deteriorate into relativism? Not only is the answer emphatically negative, but what’s more, it is the undefined and ambiguous language of subjective rights that has us in this mess of relativism to begin with. The language itself has no defense against relativism. If one person claims a right, another person will claim a different right, and the process will inevitably spin out of control.
However, it seems to me that Aquinas and his forerunners have given us a viable framework: natural law. To be clear, natural law is something distinct from natural rights. Aquinas actually begins with the concept of eternal law (lex aeternae). This law is of God’s making and is coeternal with His own nature. It is promulgated from time immemorial by the act of creation by which creatures are endowed with a spontaneous inclination to move towards their own perfection and the cohesive perfection of the universe. For humans, who can either accept or reject this law, the eternal law is received from within. When humans act in a manner consistent with God’s eternal law, they are not inventing laws of their own, but rather discovering this law and appropriating it for themselves. This, for Thomas, is the natural law (lex naturalis). It is our participation in the divine law held in the mind of God.
Of course, for Aquinas natural law is much broader than ius. Natural law commands the practice of all the virtues, whereas ius concerns only the virtue of justice. It begins with a couple self-evident principles. First, anything good must be pursued and anything evil must be avoided. From this first and most basic principle we derive others such as, “bodily health, knowledge, and friendship are good to be pursued, and their opposites are evils to be avoided.”
In addition to the natural law, we have positive human laws to help in the organization of society. However, any human law must be in conformity with the natural law. If it is held to be in violation of it, that law must be struck down or otherwise disobeyed as an unjust law. If it is not in violation of it, then the virtue of prudence serves as the mechanism for determining whether or not a particular law advances the organization of society and its purpose: to maximize the possibility of all men being able to advance in virtue. This distinction, by the way, is precisely the distinction made by the Catholic Church on the “non-negotiable” issues (abortion, marriage, etc.) and matters of prudential judgement (how best to reduce poverty, etc.) The former collection contains violations of the natural law.
The HHS conversation must begin here. To what degree does the regulation implement or negate the natural law? It is not my intent to answer this question in this article, but instead to properly frame it as we go forward.
The point of this article, rather, is to reframe these questions in terms that are more familiar to our philosophical patrimony. To the degree that we claim for ourselves inalienable rights, we become a people of entitlement. Instead, we are called to recognize that everything we have, everything we are, we receive by the grace of God. We don’t deserve any of it. Virtue-based ethics and natural law theory is a much more robust framework to promote this understanding.
1. Brian Tierney, The Idea of Natural Rights: Studies on Natural Rights, Natural Law, and Church Law, 1150-1625 (Grand Rapids: William B. Eerdmans Publishing Company, 1997).
2. Ralph McInery, “Natural Law and Human Rights,” American Journal of Jurisprudence vol. 36 (1991).
3. Alisdair MacIntre, After Virtue: A Study in Moral Theory (Notre Dame: University of Notre Dame Press, 1981).