Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Saturday, June 4, 2011

"Concession" or Ius Divinum

Unlike Michael, Rob, and Rick, I'm not at Princeton to study "institutional conscience."  I am, however, close enough to take my friend Rick's bait thrown from New Jersey.  Rick writes that "in a democracy, requests for 'conscience'-based exemptions from validly enacted regulations, are almost always requests for concessions, for toleration, and not claims of right."  I don't see it that way.  Imagine a validly enacted law (statute or constitutional amendment) that forbade the availability of wine, with no exception being made for wine intended solely for sacramental use.  Would the Church, in asking the state to permit the availability of the matter of the sacrament necessary to the worship that is God's by divine right, be asking for a mere concession?  Democratically pedigreed enactments cannot reduce what is God's by right, though obviously they can impede -- and historically often have impeded -- individuals' and groups' giving God what is His by right.  Sure, it may -- or may not, frankly -- be prudent to couch requests for the liberty of the Church in terms of concessions, but under the surface of the request for concession is claim of right that democracy is powerless to diminish.  The concession theory that comes down to us from Hobbes is an attempt to make the civil authority into that false "mortal God" that has little or no room for the Church.  Our Lord, however, didn't say, "Hoc facite in meam commemorationem si Caesari placet." He said, "Hoc facite."

 

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Brennan, Patrick | Permalink

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