Thanks to Rick and Richard for their previous thoughts on the Pope’s address to the German Bundestag. Other commentators, such as our friend (and Rick’s colleague) Cathy Kaveny [HERE] CUA’s (emeritus) Fr. Joseph Komonchak [HERE] have also offered their thoughts at dotCommonweal.
Professor Kaveny relies on the work of Paul Ramsey in her commentary on the Pope’s address. She expresses sympathy with the Ramsey view that the “Catholic” understanding of natural law—perhaps attributable to the Pope—has been narrowed by the Catholic tradition. Interestingly, Ramsey argues that “if there are inflexibilities and claims of absolute certainty and finality in a theory of natural law... [they flow from] another point in Roman Catholic moral theology, namely, the claim that the natural law has been ‘republished’ in revelation, or given determinate and specific shape in Scripture as guarded and interpreted by the positive teachings of the Church.” Cathy also notes that the common law tradition is a better model to avoid “shut[ing] down controversial questions prematurely, or attempt[ing] to have the last word in the public discussion” than the “manuals of moral theology.” She concludes by asking “how Ratzinger would respond to Ramsey.”
I think from what the Pope said at the Bundestag, he would argue that Ramsey misunderstands natural law theory as it has been developed by the Church; moreover, I think the Pope would disagree with the characterization that the Catholic perspective is narrowly defined by revelation and Scripture.
In his piece, Fr. Komonchak focuses a good deal on Benedict’s addressing of the ecology issues—the ecology of nature, and that of man. I am certain that Komonchak is on to something, but he concludes his observations by stating, in referring to human ecology discussed by the Holy Father at the Bundestag, “That we cannot reasonably and responsibly ignore crucial elements of the beings we are is, I think, the Pope’s point, and I think it needs stressing, [Araujo here: I share this view] but all the work lies in trying to determine which of the laws of nature yield precepts of the natural law. I think the Pope passes over this question.” I think Fr. Komonchak, if I understand his point correctly, is wrong in this last assertion. Pope Benedict is not talking about the law of nature yielding “precepts of natural law.” He is talking about something quite different.
The fundamental point the Pope argued deals with reason—that is, right reason, objective reason. And the Holy Father knows that it is in the nature of the human person to exercise his or her intellect in this fashion. Moreover, the importance and relevance of nature to the Pope’s address is that the human person, with the intelligence just described, can perceive and understand the intelligible world—ecology, if you will—that surrounds the person. In turn, the combination of human intelligence perceiving the intelligible reality that forms the surrounding ecology becomes the “true sources of law” as he states and elaborates.
He relies on St. Augustine’s observation that those who make and enforce law without justice (that is justice based on the methodology I have just described) are nothing more than bands of robbers. The Pope was not reticent to state that his fellow countrymen who ran Germany in the 1930s and throughout the Second World War were such bands. These “leaders” did not use their intelligence wisely; they did not perceive with intelligence the intelligible world, and hence, the laws they made and enforced were terribly flawed. This is why the Pope said,
If something is wrong in our relationship with reality, then we must all reflect seriously on the whole situation and we are all prompted to question the very foundations of our culture. Allow me to dwell a little longer on this point. The importance of ecology is no longer disputed. We must listen to the language of nature and we must answer accordingly. Yet I would like to underline a point that seems to me to be neglected, today as in the past: there is also an ecology of man. Man too has a nature that he must respect and that he cannot manipulate at will. Man is not merely self-creating freedom. Man does not create himself. He is intellect and will, but he is also nature, and his will is rightly ordered if he respects his nature, listens to it and accepts himself for who he is, as one who did not create himself. In this way, and in no other, is true human freedom fulfilled. Let us come back to the fundamental concepts of nature and reason, from which we set out.
Pope Benedict’s view is neither narrow nor restricted to revelation or Scripture. It is based on reason, right and objective and moral, which is a gift to be used wisely for one’s self and for others. He shares his fellow German, Heinrich Rommen’s view that the natural law is neither explicitly nor implicitly based on “Catholic Weltanschanung.” The view of man’s nature essential to the Pope’s address is that the human person cannot restrict one’s self to Hobbesian individualism where the human person is simply self-centered and self-concerned. What is the fundamental truth of human nature is that the person who uses his or her intelligence wisely and perceives well the intelligible reality will come to realize that the common good—the good of the self that is inextricably tied to the good of all—is essential to the making and enforcing of law that seeks that which is good and avoids that which is evil. And vital to this last enterprise is caritas—something which is not alien to Benedict’s public writing and addresses but is usually absent in the making of laws in the present age.
This is why Benedict relied on the illustration of the young King Solomon. He was offered anything by God, but he chose not success (power), wealth, long life, or annihilation of his enemies; rather he asked for a “listening heart” so that he might wisely govern God’s people with a loving care that pursues the good and avoids the evil that too often tempts those in power.
Richard Myers called our attention to the Pope's recent address to the Bundestag, "The Listening Heart: Reflections on the Foundations of Law." It strikes me that this talk warrants a lot more conversation and exploration and engagement, especially from we lawyers. Contact your local Catholic lawyers clubs, Catholic law-students associations, etc., and dig into the lecture. Here's just one bit:
. . . Unlike other great religions, Christianity has never proposed a revealed law to the State and to society, that is to say a juridical order derived from revelation. Instead, it has pointed to nature and reason as the true sources of law – and to the harmony of objective and subjective reason, which naturally presupposes that both spheres are rooted in the creative reason of God. . .
If there were any lingering doubt that Pope Benedict XVI has a deeply Augustinian sensibility, that was laid to rest in his meeting last Friday at the Augustinian monastery in Erfurt with the leaders of the Lutheran Church in Germany and by the Pope's praise (!) for Martin Luther:
As the Bishop of Rome, it is deeply moving for me to be meeting you here in the ancient Augustinian convent in Erfurt. As we have just heard, this is where Luther studied theology. This is where he was ordained a priest. Against his father’s wishes, he did not continue the study of Law, but instead he studied theology and set off on the path towards priesthood in the Order of Saint Augustine. And on this path, he was not simply concerned with this or that. What constantly exercised him was the question of God, the deep passion and driving force of his whole life’s journey. “How do I receive the grace of God?”: this question struck him in the heart and lay at the foundation of all his theological searching and inner struggle. For Luther theology was no mere academic pursuit, but the struggle for oneself, which in turn was a struggle for and with God.
“How do I receive the grace of God?” The fact that this question was the driving force of his whole life never ceases to make a deep impression on me. For who is actually concerned about this today – even among Christians? What does the question of God mean in our lives? In our preaching? Most people today, even Christians, set out from the presupposition that God is not fundamentally interested in our sins and virtues. He knows that we are all mere flesh. And insofar as people believe in an afterlife and a divine judgement at all, nearly everyone presumes for all practical purposes that God is bound to be magnanimous and that ultimately he mercifully overlooks our small failings. The question no longer troubles us. But are they really so small, our failings? Is not the world laid waste through the corruption of the great, but also of the small, who think only of their own advantage? Is it not laid waste through the power of drugs, which thrives on the one hand on greed and avarice, and on the other hand on the craving for pleasure of those who become addicted? Is the world not threatened by the growing readiness to use violence, frequently masking itself with claims to religious motivation? Could hunger and poverty so devastate parts of the world if love for God and godly love of neighbour – of his creatures, of men and women – were more alive in us? I could go on. No, evil is no small matter. Were we truly to place God at the centre of our lives, it could not be so powerful. The question: what is God’s position towards me, where do I stand before God? – Luther’s burning question must once more, doubtless in a new form, become our question too, not an academic question, but a real one. In my view, this is the first summons we should attend to in our encounter with Martin Luther.
Indeed, "he was not simply concerned with this or that." While spending a few weeks in Berlin on a fellowship a couple years ago, I took a day trip to Wittenberg to see the famous castle church door upon which Luther is supposed to have nailed his 95 theses and the wonderful Luther Museum at the former Augustinian monastery. While looking at Luther's own handwritten notes in the margins of his Bible, I couldn't help but marvel--notwithstanding some reservations about Luther and Luther's legacy--at the intense fervor that made a German Augustinian monk one of the central figures in world history, a fervor the Pope captures so well and so generously in these remarks.
At Public Discourse, Helen Alvare, Carter Snead, and Gerry Bradley add their voices to the many who are urging the Administration to re-think the proposed "interim final rule" regarding "preventative services." A bit:
[T]hroughout American history, religious institutions have been the leading private providers of charitable, educational, and medical services to the poor, always serving those they felt were the most marginalized populations of their day—whether slaves or freed slaves, new immigrants, Native Americans, prisoners, or persons with AIDS. The quality and efficiency of their care, and the compassion with which it has been delivered, are often noted. Regularly, the populations served did not share the faith of the religious institutions who took up their cause
Given their solidarity with the dispossessed, religious leaders of every denomination have, throughout American history, also effectively led a variety of human rights’ movements, including the movements for abolition of slavery, for civil rights, for campaigns to end poverty, and for justice for immigrants, the elderly, those with disability, and the unborn. The presence of religious leaders and religious institutions in the public square—and not behind the walls of their monasteries, churches or homes—is an inescapable aspect of America’s history of progress and prosperity.
The proposed exemption disregards this history by limiting its application to employers who do little (or nothing) but preach to the convinced. . . .
I appreciated this essay, in America, by C.U.A.'s Brad Lewis (who is visiting at Notre Dame this year), called "American Exceptionalism: From a Political Theory to an Article of Faith." Check it out.
Two problematic laws, one in England, one in France.
First, Religion Clause blog discusses a situation in Lancashire, in which the police told the owner of a private business, the Salt and Light Coffee House, that the display of various Bible verses on a TV screen at the back of his cafe violates an ordinance which prohibits, among other things, "distress[ing]" or "alarm[ing]" displays.
Second, Paris has enacted a law which prohibits prayer in the streets. As detailed here, it seems that the issue is not so much the general obstruction that any unregulated public gathering would pose, but the specifically objectionable act of public religious expression as such, which, according to the report, "hurts the sensitivities of many of our fellow citizens" and is undignified.
We had a lively discussion (as did others) a few months ago about Chris Tollefsen's (and others') argument that "lying" is never morally permissible. In this post, at First Things, Tollefsen (and Alexander Pruss) return to the conversation, with their "Case Against False Assertions." Tollefsen and Pruss are responding, in particular, to Janet Smith, who took a different view here.
I replied to Tollefsen's earlier argument here. I continue to think that the position "it is always wrong to intentionally deceive another" is not plausible, and I don't think the position is made much more plausible with qualfications that distinguish, say, strategic (deceptive) feints on the battlefield from "assertions." To think this is not to think (I think!) that it is permissible to "do evil that good might result"; it is to think that to deceive is not necessarily to "do evil."
On October 4 (next Tuesday), the Center for Law and Religion and the Catholic Law Student Society at St. John's University School of Law will co-host an event devoted to Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a case by now well known to MOJ readers. The Supreme Court hears oral argument on October 5, so the event could not be more timely. I will be talking about the case -- one of the most important religious liberty cases to come before the Court in at least two decades -- and the doctrine of the ministerial exemption generally. There will then be a period of questions, discussants to include my colleagues David Gregory and Mark Movsesian as well as Mr. Peter J. Johnson, Jr., president of Leahy & Johnson, P.C.
The event will occur in the 4th floor Atrium at 5:30 pm. It is free, and all are welcome. If you are in the area, please stop by to say hello.
UPDATE: Just after I posted this, I noticed this article about the case. Likely there will be many similar pieces in the coming days. In my view, this article is misleadingly titled. The case is not about religious institutions' power to "declare" that their employees are exempt from "federal protections." It is about whether and in which circumstances (if ever) the Constitution, as interpreted by the Supreme Court, limits the reach of anti-discrimination law. It may or it may not; but in either case, little turns on anybody's individual declarations (though conceivably if an institution explicitly waived its rights, that might be relevant).
This morning I've been reading around Fr. John Coughlin's terrific Canon Law: A Comparative Study With Anglo-American Legal Theory (OUP 2011). Fr. Coughlin sets up a comparison of three approaches to canon law: antinomianism, legalism, and one based in the rule of law, and he defends the last of these against the other two. One of the worthwhile things about Fr. Coughlin's methodology is that, as the title indicates, the book offers a comparative perspective with 19th and 20th century philosophy of law (represented in the highly various tradition beginning with John Austin and proceeding through to Hart, Raz, Finnis, and also Rawls).
Particularly interesting in this respect is Chapter Four, in which Fr. Coughlin compares theories of property ownership in canon law and liberal philosophy. After an illuminating discussion tracing historical views in each tradition, he says:
Prof. Vivian Berger argues here that "religious rights" can be "civil wrongs", and so urges the Court to reject the ministerial-exception claim in the upcoming Hosanna-Tabor case. I agree with the first sentence of Prof. Berger's piece:
On Oct. 5, the U.S. Supreme Court will hear arguments in a very significant case that pits a Lutheran parochial school's assertion of First Amendment rights against the claims of the Equal Employment Opportunity Commission and a fired teacher, Cheryl Perich, of violations of the Americans With Disabilities Act (ADA).
Otherwise, I'm afraid I think her arguments miss the mark. Just a few points: First, Prof. Berger says that "Hosanna-Tabor illustrates a recurring tension between two bedrock guarantees: the religion clauses of the First Amendment and the civil rights laws." But, these are not, as I see it, two similarly "bedrock" guarantees. That is, the Constitution of the United States forbids governments from interfering with religious freedom (in certain ways); it does not forbid non-governmental employers from discriminating on the basis of age or disability nor does it require Congress to exercise its own powers to forbid such discrimination. Please don't (intentionally or negligently) misunderstand my point here: Of course our laws against employment discrimination by private employers are important and promote the common good. But this case is about a particular constraint -- i.e., the First Amendment -- on the government; any nondiscrimination laws -- even ones we really and rightly like -- must, in order to be valid (let alone "bedrock"), comply with that constraint.
Next, Prof. Berger asserts that "[e]ven if redressing Perich's injury might incidentally burden the church's rights to choose employees who engage in important religious work and to control its religious message, the government's compelling interest in eradicating discrimination ought to trump these." Obviously, the words "incidentally" and "compelling" are doing a lot of work here. But, again, injury done to the church's religious-freedom rights would hardly be incidental in this case, and it is far from clear that the means being employed -- i.e., applying nondiscrimination laws to second guess religious institutions' decisions about who should be their teachers, ministers, and leaders -- is necessary to the substantial advancement of the government's compelling interest.
Third, Prof. Berger concludes with this:
In sum, the Court should reject Hosanna-Tabor's overbroad position and render unto Caesar what is Caesar's by affirming Perich's right to freedom from retaliation — which is enshrined in laws inspired by constitutional guarantees of due process and equal protection.
I agree entirely that the Court should, in this case, keep Caesar to what is Caesar's. But, the point is, there are "things that are not Caesar's." These things include "the authority to decide who should be a minister."
