Rendering Unto Caesar - Catholicism, Politics, Law and Democracy

Rights, responsibilities and religious bodies

Aidan O'Neill QC

1. The temptation of Shari'a
2. Scottish Catholicism
3. The Eucharist, the vote and the presidential election
4.A "necessary conformity of civil law with the moral law"? - Catholic laws for a godless polity
5.Catholicism, conscientious objection and unjust laws
6.Respect for human rights as a democratic principle
7.The moral vision of the democratic state
8. City of God V. Citiy of Man?
9. The primacy of conscience
10. Kenosis: the hierarchy, humility and the beginning of dialogue

6. RESPECT FOR HUMAN RIGHTS AS A DEMOCRATIC PRINCIPLE

6.1 As we have seen, documents emanating from John Paul II, the Curia and the bishops have increasingly been willing to use the language of human rights (although the Vatican itself has not subscribed to the European Convention on Human Rights ). And the institutional Church has shown itself willing to criticise certain aspects of the laws of civil society because of their alleged incompatibility with human rights - for example in relation to the right to religious freedom. As the 2 states:

"[T]he Church has the right always and everywhere to proclaim moral principles, even in respect of the social order, and to make judgments about any human matter in so far as this is required by fundamental human rights or the salvation of souls"

6.2 Of course, if the Church is willing to use human rights language to criticise civil society, it has also to be open to the possibility that it and its actions may itself be judged and criticised under reference to these self-same human rights standards. As is recognised in the Compendium of Social Doctrine of the Church:

"The Church profoundly experiences the need to respect justice and human rights within her own ranks."

6.3 But the main problem with the use of human rights language by the institutional Church to criticize those laws of civil society with which it is in disagreement is that the Church uses the language of human rights as if it were simply another way of talking about "natural law", and that the Church is doing nothing more than translating (what it states to be) its constant teaching on the requirements of morality in any given situation into intelligible contemporary terms and language.

6.4 I would argue, however, that in using the language of human rights in this way, the Church authorities are making a basic category or framework error. This attempt at aggiornamento in the type of language used so to convey and communicate the Church's moral teaching in (what is thought to be) a more readily intelligible (and universally acceptable) species of discourse has engendered confusion and not illumination.

6.5 In Catholic teaching "natural law" is a specifically Christian theological account of what makes action by human beings into moral actions, and of what gives human (positive) laws their prescriptive or binding force. But contemporary fundamental rights talk is not about theology, nor is it about virtue (which is surely the proper focus for any Christian morality). Instead, "fundamental rights talk" is best understood as the articulation of a political statement or attitude, that the power of the State is not to be seen as unlimited. And one concrete expression of this limitation on power is that the State and its agents can be held to account - as a matter of law - for conduct which is held to be incompatible with respect for certain basic values. Contemporary fundamental rights talk, then, arises from the particular historical experience of seeing (particularly in Nazi Germany) how far untrammeled State power can be used to abuse individuals. It seeks to protect individuals from the State and its agents. Its focus is individualistic. Its methods are legalistic. And its end is individual self-preservation. It does not address the issue of the duties and responsibilities owed by individuals to others, or the interests of the community over and against the individual.

6.6 In apparently translating its claims of morality into the language of human rights, the Church fails to take due account of the political (and specifically the democratic) context within which fundamental rights talk is now embedded. In so de-contextualising, de-democratising and de-historicising human rights there is a danger that the Church misunderstands and misrepresents them.

6.7 Further, the claim that "democracy" and the processes of the rule of law have a central value in and of themselves has no direct counterpart in the traditions of unreformed Catholic Christianity. The Roman Church - in stark contrast, say, to the presbyterian Church of Scotland - is not a democracy (its people have not vote in its governance) nor has it any aspiration to be such.

6.8 As we have noted, the context within which the adoption of legally enforceable statements of fundamental rights which the States authorities bind themselves to obey is, for the most part, a post-World War II phenomenon. It may best be understood as a reaction to the perversion of the form of the law that was engendered within the Nazi State, and the consequent corruption of those who participated as lawyers and judges within that system.

6.9 The unique horror of the Nazi system is that it purported to maintain the forms of law and legality, while permitting tyranny and injustice to reign. The omnipresent mark of the authority of the Nazi State was the "Fasces", a symbol originally taken by Mussolini from Ancient Rome, which showed an axe surrounded by birch or elm rods bound together by a red strap. The very name "Fascism" is derived from their use of this symbol. The rods symbolised the power of the State authorities to carry out corporal punishment upon individuals found guilty of infractions of the law. The axe symbolised the power of the State to impose the death penalty upon law-breakers. Fascism, then, carried a constant symbolic assertion by the ruling authorities' powers of punishment, indeed of life and death, over all those under its rule.

6.10 Under the Nazi State, however, the legal system not only provided for punishment and death. It allowed for torture to be used against individuals. It routinely reversed the presumption of innocence and the principle that criminal legislation should not be applied retrospectively. It legislated for people to be held in slavery and conditions of forced labour. Under its "Nuremberg laws" it grossly interfered in the rights to privacy of those under its rule, and denied them rights to free expression, free assembly and to freedom of thought, conscience and religion. The Nazi authorities in the name of "eugenics" withdrew from certain individuals the right to marry and to found a family. Notoriously, they discriminated amongst the populations under their control on the grounds of "race", religion, national and social origin and political or other opinion. In the words of the Nuremberg War Crimes Tribunal the Nazi legal system was one which nurtured

"a nation-wide government-organised system of cruelty and injustice, in violation of the laws of war and of humanity, and perpetrated in the name of law by the authority of the Ministry of Justice and through the instrumentality of the courts. The dagger of the assassin was concealed beneath the robe of the jurist".

6.11 The response to the horrors and excesses of the Nazi State and its so called "legal system" - which purported to "legitimize" discrimination against, and ultimately the expropriation and wholesale extermination of the Jews - was for jurists to come together to set out, both in international Charters and national constitutional documents, the actual substance of the moral underpinnings to the domestic law of States. Thus, the United Nations proclaimed the Universal Declaration of Human Rights in 1948. Regional agreements further expounding the principles of international humanitarian law were also entered into, notably the 1950 European Convention on Human Rights. The post-War German national constitution, the Grundgesetz, set out a list of basic rights which the German State was henceforth bound to accept and which could not be changed or abrogated by any constitutional amendment. In the post-War process of decolonisation, too, States newly independent of the British Empire were given written constitutions containing bills of fundamental rights modelled on the European Convention. And in the years after the War, Canada, New Zealand and South Africa created and incorporated their own Bills or Charters of Fundamental Rights and Freedoms. The domestic law of Australia, through the decisions of its courts, become permeated by the fundamental rights standards drawn from international instruments to which Australia is a signatory, it being a general principle of Australian law that domestic law is applied in a manner so as not to offend international law and not to derogate from fundamental rights, unless the words of the statute are clear.

6.12 These human rights declarations and charters and developments in the common law were intended to incorporate, post-Nuremberg, the insight that untrammeled State power can lead to great evil and therefore of the need to set legally enforceable limits - based on fundamental values - on what the State might legitimately do and require of those within its jurisdiction.

6.13 While this addressed the issue of the State's power vis à vis the individual, the other main insight gained post-Nuremberg concerned the individual's relationship to the State. In particular, an attitude of unquestioning obedience by an individual before authority was also seen to lead to the possibility of great moral evil. Thus judges in the Nuremberg trial process rejected the "only following orders" or a defence of acting in accordance with Nazi "law" at the time as a valid defence to the trial and punishment of individuals for their acts or omissions deemed to be criminal "according to the general principles of law recognized by civilised nations" on the basis that "crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced." Individuals would not be permitted to abdicate their moral or legal responsibility for their actions, even when sanctioned by the State authorities.

6.14 With the possible exception of the United States, then, almost every other nation experienced significant constitutional change or development since World War II, whether through the creation of the European Union, the dismantling of Communism, the process of decolonisation, the transformation of Empire into Commonwealth, or the ending of apartheid. A central part of that constitutional change was the incorporation into the structures of the States the insights gained from the post-Nuremberg experience, in particular the need to protect individuals' fundamental rights and set substantive limits on the powers of the State and also to emphasise the continuing responsibility of individuals to examine question the demands of power and authority and not to lapse into habits of unthinking obedience thereto.

6.15 This embracing and incorporation of fundamental rights standards within national legal systems post-Nuremberg may be seen as a memorial for or legal monument to the victims of Nazism. The creation of this monument in so many States was also part of a specifically democratic process - being a conscious rejection of the evils and excesses seen in totalitarian dictatorships. Human rights charters were seen to embody the essence of the "rule of law". Making human rights into politically and legally enforceable standards is seen as being fundamental to what it is to be a democracy.

6.16 The legal systems of the Western world may now be said to be "post-Nuremberg" in that they have incorporated (with the acceptance of human rights) the fundamental insight that law and morality are not wholly distinct and separate spheres, and that those who hold office within national legal systems have a duty to "administer justice" in accordance with humanitarian principle and not simply mechanistically to "apply laws". The European Constitution (as agreed between the Governments of the now twenty five Member States of the European Union in June 2004 and signed in Rome on 29 October 2004) makes this "value laden" aspect of the law and constitutions of the Member States explicit when it states:

"Drawing inspiration from the cultural, religious, and humanist inheritance of Europe, from which have developed the universal values of inviolable and inalienable rights of the human person, democracy, equality, freedom and the rule of law, … the Union is founded on the values of respect for human dignity, liberty, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between men and women prevail."

6.17 There is no doubt that many of these values that Western democratic States now proclaim have their roots in the Christian moral tradition. But other values - such as the importance of freedom of speech and the idea of pluralism and tolerance - have their roots in the Enlightenment rejection of institutional Christianity. And while in its 1965 declaration Dignitatis Humanae the Church finally proclaimed its belief in the importance of legal recognition of the freedom of religion, the manner in which the fundamental right to freedom of thought, conscience and religion (guaranteed under Article 9 ECHR) has been understood in the modern European context is not necessarily one by which those currently holding positions of influence within the Holy See would set great store.

6.18 But the case law of the European Court of Human Rights is to the effect that the legitimate end which is protected under Article 9 is not the preservation of religious doctrine as such, or the upholding of the legal status historically given to a particular establishment, but the maintenance of the individual's freedom to hold and practice one's religion in a manner which is consistent with a tolerant and pluralist democracy and with due respect for the rights of others. Hence, not every strong religiously based feeling, opinion or judgment which an individual might make is protected under Article 9. A degree of value judgment is made by civil authorities as to what convictions - even religiously based ones - may properly claim the protection of the Convention in a democratic society. In particular, the religious and philosophical convictions which are protected under Article 9 are to be distinguished from prejudices - for example, say, anti-Semitism - which however deeply held and "religiously" based, are not regarded as being compatible with respect for human dignity, and are not worthy of respect in a democratic society. As Arden LJ has noted:

"[T]here are forms of belief, religious and otherwise, that are not desirable in a democratic society and there are others which are even harmful to society. …

[T]o be protected by article 9, a religious belief, like a philosophical belief, must be consistent with the ideals of a democratic society, and that it must be compatible with human dignity, serious, important, and (to the extent that a religious belief can reasonably be required so to be) cogent and coherent. … I would accept that the conditions for recognition must not be set at a level which would deprive minority beliefs of the protection that they are obviously intended to have under the Convention."

6.19 And in her monograph Freedom of Religion under the European Convention of Human Rights Dr. Carolyn Evans concluded as follows:

"While freedom of religion or belief is an important right, the free practice of religion or belief should sometimes be limited. Even if the believer claims an absolute and divinely mandated obligation to behave in a particular manner, it does not follow that the State or human rights bodies should support those claims. Religions or groups of believers may be involved in stirring up hatred against people who do not share their beliefs and they may actively oppose the notion of religious freedom. Religions have also tended historically to discriminate against women and some religions have been involved in promotion notions of racial inequality and inciting persecution against homosexuals."

 

6.20 Some within the Vatican see such an interpretation of the right to religious freedom within a democratic society as in fact a disguised atheistic attack on religion; and so they rush to claim "victim status" for Catholic Christianity, battered as they see it by a new intolerant secularism. Thus it is claimed:

"Unfortunately, even in democratic societies, there still remain expressions of secular intolerance that are hostile to granting any kind of political or cultural relevance to religious faiths. Such intolerance seeks to exclude the activity of Christians from the social and political spheres because Christians strive to uphold the truths taught by the Church and are obedient to the moral duty to act in accord with their consciences."

and that:

"[T]he marginalisation of Christianity … would threaten the very spiritual and cultural foundations of civilisation."

 

6.21 It is against this background - the, in effect, the values of modern European democratic State demands tolerance of the (religiously) tolerant and, by corollary, intolerance of the (religiously) intolerant - that the furore over the proposed appointment of Dr. Rocco Buttiglione, an Italian former Christian Democrat politician and member of the Catholic lay association Communione e Liberazione, as European Union Commissioner for Justice, Freedom and Security is to be understood. Could a man who self-avowedly held "traditional views" on marriage, the family, women and sexuality be entrusted with a public post which included responsibility for the anti-discrimination programme of the European Union which seeks, in the words of Article 21(1) of the EU Charter of Fundamental Rights, to prohibit:

"any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation."

6.22 The refusal of the European Parliament to endorse Dr. Buttiglione as Justice Commissioner has however been presented in certain Church circles as an example of "Christianophobia" with Dr. Buttiglione as the sacrificial victim to an aggressive (and peculiarly Continental) anti-clerical and anti-Christian "militant secularism". I would not see it that way. Instead my own view is that it was politically unwise to nominate an individual with apparently known and attributable particular views on the issues of the moral licitness of, for example, homosexuality or the role of women in family and society to a position in which he would be in charge of promoting the anti-discrimination agenda of the European Union which seeks to eliminate all discrimination in these two areas, in the light of the Church teaching that:

"When - concerning areas or realities that involve fundamental ethical duties - legislative or political choices contrary to Christian principles and values are proposed or made, the Magisterium teaches that 'a well formed Christian conscience does not permit one to vote for political programme or an individual law which contradicts the fundamental contents of faith and morals'. In cases where it is not possible to avoid the implementation of such political programmes or to block or abrogate such laws, the Magisterium teaches that a parliamentary representative whose personal absolute opposition to these programmes or laws is clear and known to all, may legitimately support proposals aimed at limiting the damage caused by such programmes or laws and at diminishing their negative effects on the level of culture and public morality. In this regard a typical example of such a case would be a law permitting abortion. The representative's vote, in any case, cannot be interpreted as support of an unjust law, but only as a contribution to reducing the negative consequences of a legislative provision, the responsibility of which lies entirely with those who have brought it into being."

6.23 Against that background, the proposed appointment of Dr. Buttiglione to as EU Justice Commissioner with responsibility for anti-discrimination would be as politically unwise perhaps to proposing a known "Green" or environmental activist to a portfolio promoting industrial development or nuclear power; or a devout free marketeer to be in charge of overseas development, or a Communist to be in charge of the deregulation of the money markets and encouragement of the free movement of capital. All of these individual views might be perfectly morally and politically held and defensible, but those same views may also disqualify them, or render them unsuitable for the holding of particular jobs.

6.24 The more interesting thing about this particular controversy is that Dr. Buttiglione said in his defence that, in effect, no matter his personal moral views on such issues as homosexuality, the role of women in marriage and lone parents, he could be trusted to carry out his public role in spear-heading the anti-discrimination agenda of the European Union because he had pledged as a European Commissioner to uphold the European Constitution and the European Union's Charter of Fundamental Rights. But this distinction between a politician's private views and his public duties - which is relied upon by Senator John Kerry when questioned as to his voting record on abortion - would seem to be precisely what has been condemned by the Congregation for the Doctrine of the Faith in its Doctrinal Note of 2002 Regarding the participation of Catholic in Public Life when it states:

"The lay Catholic's duty to be morally coherent, found within one's conscience, … is one and indivisible.

'There cannot be two parallel lives in their existence: on the one hand, the so-called 'spiritual life', with its values and demands; and on the other, the so-called 'secular' life, that is, life in a family, at work, in social responsibilities, in the responsibilities of public life and in culture. […] (John Paul II, Apostolic Exhortation Christifideles laici, 59.)'

Living and acting in conformity with one's own conscience on questions of politics is not slavish acceptance of positions alien to politics or some kind of confessionalism, but rather the way in which Christians offer their concrete contribution so that, through political life, society will become more just and more consistent with the dignity of the human person."

6.25 Thus to condemn, as various Vatican spokesmen did, the opposition to Dr. Buttiglione's appointment to his position as EU Commissioner with responsibility for ant-discrimination as evincing religious discrimination against Catholics, a "form of intolerant secularism" and as a "nasty new lay inquisition" is to miss the point. The point is this: which moral vision can a Catholic in public life be expected to follow and implement in carrying our his or her public duties - those of the institution in which s/he or she holds office, or those of the Church of which s/he is a member ? For the distinction between the religious vision of the Rule of God and the secular perspective of the Rule of Man is one repeatedly emphasized by Pope John Paul II. As he notes in Veritatis Splendor:

"Today, when many countries have seen the fall of ideologies which bound politics to a totalitarian conception of the world - Marxism being the foremost of these - there is no less grave a danger that the fundamental rights of the human person will be denied and that the religious yearnings which arise in the heart of every human being will be absorbed once again into politics. This is the risk of an alliance between democracy and ethical relativism, which would remove any sure moral reference point from political and social life, and on a deeper level make the acknowledgement of truth impossible. Indeed, 'if there is no ultimate truth to guide and direct political activity, then ideas and convictions can easily be manipulated for reasons of power. As history demonstrates, a democracy without values easily turns into open or thinly disguised totalitarianism' (Encyclical Letter Centesimus Annus (May 1,1991), 46: AAS 83 (1991), 850)."

7. THE MORAL VISION OF THE DEMOCRATIC STATE

7.1 But democracies do have values. The values that Western democratic States proclaim (and seek to instantiate) are those of liberty, equality, tolerance, pluralism, and respect for human rights and the structures of the rule of law. In particular, the moral vision implicit in the Western democratic State is one based on the following propositions:

(i) that all individuals have intrinsic worth and value;

(ii) that respect for this intrinsic worth can be translated into statements of fundamental rights;

(iii) that others' respect for the individual's rights entails correlative obligations placed upon that individual - that of respecting the rights of other individuals as equal to one's own and of respecting the interest of the community as a whole;

(iv) that the interests of the community as a whole are to be determined by a democratic process, under which the majority's will prevails - subject always to the duty of the majority to give due respect to others' fundamental rights;

(v) that the creation and maintenance of a balance of mutual respect for the rights of individuals and the interests of the community, requires that institutions for open dialogue and discussion flourish - hence the importance accorded to the principle of freedom of speech, open and honest Parliamentary debate, and the flow of information and comments through the press, broadcasting, and the internet;

(vi) that the avoidance of tyranny and abuse of power by (or in the name of) the majority, and the due protection of the fundamental rights of minorities and individuals entails that there should be independent and impartial courts whose judgments are to be respected and accepted by all parties before them, most obviously by those entrusted with political power;
(vii) that for the institutions of power (executive, legislative and judicial) to be able to work together in maintain the structures of democratic society - in which the majority leads but does not dominate or exploit the minority - there has to be an attitude of humility and contingency of views, an acceptance that one might be wrong and a consequent readiness to be open to persuasion of the rightness of other views;

(viii) that all those who participate within civil society - and most clearly those who hold public office - do so in good faith and share those values of respect for the individual, tolerance of difference, equality of treatment, and willingness to listen upon which all the civil institutions of the society are based;

(ix) that the laws duly passed under the democratic deliberative process and which have been duly found to be in accordance with the constitution and respect for fundamental rights be respected and obeyed by all parties within society, subject always to the right to continue to press for constitutionally mandated change in such laws;

(x) that, post-Nuremberg, the possibility is recognised that, in certain rare and extreme cases, an individual may feel impelled, as a matter of conscience, to break a duly enacted law of the State in order to prevent further illegal action but only where -

(a) the action which is sought to prevent is in fact illegal, whether under domestic or applicable international (humanitarian) law;

(b) the individual's action is necessary in the senses that there was no legal reasonable alternative is in fact available to the actor (for example because the relevant authorities have refused or refrained from enforcing the law in relation to the illegal act)
(c) that the individual actor could reasonably and properly expect that the actions taken would be effective in impeding the illegal act;

(d) that the individual's actions are marked by a "fidelity to legal values", that is to say that it is proportionate, involves no possibility of harm or violence to individuals, and no attempt is made to avoid detection in the doing of the act

7.2 On the basis of these propositions, civil democratic society does not differ radically from the institutional Church on the question of the substantive fundamental values which it seeks to promote: human rights discourse is common to both communities. And in both cases it is also recognized that one the purposes of reference to human rights is precisely to protect minorities against the possible tyranny of the majority

7.3 The difference between civil democratic society and the Church lies rather in two aspects. Defined negatively, it might be said that in comparison to the Church, civil democratic society shows a lack of certainty or finality in the judgments made on how those substantive values are to be realised, and on the requirements of the common good. Defined positively, civil democratic society differs from the Church in its openness to the possibility of alternative views of the good than those which currently hold sway, and in its procedures for general consideration and popular participation in the process of deliberation and decision on how we might achieve the common good.

7.4 Civil society - in contrast, it would seem, to the Church - admits its fallibility in getting the right answer, but it has procedures and institutions to allow for continued debate, and for the possibility of change in the rules and the law in this search for the right answer. Such an admission of fallibility does not mean, as is sometimes charged, that a democratic society is therefore committed to "ethical relativism". Ethical relativism is an assertion that there is no right answer. The structures of a democratic civil society are precisely to allow for the continued search for the right answer.

7.5 And while the tendency on the part of the institutional Church has been to claim that its moral teachings have been constant, unchanging and immutable since its foundation, there is no doubt that the Church authorities have effectively changed their position over time - reflecting perhaps developments in wider society - on such issues as the morality of wars of conquest and the processes of colonialism, on slavery, on sex discrimination, on the rights of women, on freedom of individual conscience, on freedom of religion, on capital punishment, on charging interest on a loan.

7.6 The values which the post-Nuremberg democratic State has sought to incorporate and bind its institutions (public authorities) to are based on the inestimable worth of the individual as being an end in herself and never as a means. We are then now as a matter of (positive) law heirs to the Christian tradition, to the Enlightenment and to Kant. Legal positivism - the claim that the law is no more and no less than the command of the powerful no matters its content - has been routed. We are all natural lawyers now. What the democratic State bring into the realization of those values (which the Church does not, and hence the apparent mismatch in rhetoric and practice between the two discourses) is the idea of due process, of the rule of law, the procedural rights of the defence and the like.

7.7 A civil democratic society is one which allows that where a decision has to be taken on such issues, the decision is taken on the basis of the vote of the majority of the people (or their representatives). A civil democratic society will also be a pluralist society: that is to say one which allows for the possibility of individuals holding different views of questions of political and moral importance and having the right and opportunity to express, publicise and proselytise for those views - whether it be fox hunting or abortion regulation. A civil democratic society will also be a liberal society, that is to say one which aspires or seeks to allow individuals the greatest degree of freedom to express those views, consistent with due respect for others to express opposing views.

7.8 An essential part of what it is to hold public office in a democracy is a quality or disposition of "open-mindedness". That is to not to say that one has to be committed to a form a relativism - that there are no objective truths - but that one is open to persuasion that the truths one holds and perceives may not be the definitive or last word. This is most clearly an essential quality for those acting as judges within civil society - without an ability for detachment from one's initial views, a capacity to suspend one's immediate judgment on an issue and be willing to listen to argument - there can be no true act of judging impartially. But even among members of the legislature and the executive - although sometime obscured by the party whip system - the ideal is that they too should be independently minded, willing to hear other voices and having heard them, to deliberate and come to the their decision on the requirements of the common good

7.9 Human rights within civil democratic society are based on the recognition of the value of the individual human being and on the value of democratic process and the maintenance of dialogue and free expression as the only means toward the resolution of moral and political disputes. From the viewpoint of civil democratic society, it makes no sense to seek to disentangle ideas of substantive "human rights" from the deliberative and procedural matrix in which they have been engendered.

7.10 In using the language of human rights, the Church is - from the point of view of civil society - in fact committing itself to a particular moral and political vision: one which speaks of the value of the individual but which also speaks of the value and fundamental importance of democratic processes. Dialogue within a liberal pluralist democracy involves a willingness to listen as well as a readiness to speak and an acceptance of the existence of different and dissenting voices. It involves, too, an acknowledgment of the value of the procedures existing within society for the resolution of differences on questions touching on the common good - whether this be by legislation or litigation. It necessitates respect for the "rule of law".

7.11 Any Church teaching on the proper relationship between the civil law and the "moral law" needs to take account of the fact that in the context of the democratic State, the legitimacy of each individual law comes not from the end which it achieves, but from the fact that it has passed through the democratic process and has been found, by the institutions of the State duly charged with this task, to be in conformity with respect for the fundamental rights of those falling within the care of the State.

7.12 But laws in the democratic State are not fixed and final, and its governments are not eternal. Precisely because the ideal which democracy represents is that the law continues to be responsive to and reflective of the community, there is provision for lawful change. Lawful change is brought about by using the mechanisms of a democratic society which allow for: campaigns to be mounted; petitions gathered; public discussions initiated in the press and the broadcasting media; Parliamentary debates sponsored; and Ministers lobbied all with a view to bringing change in the law, the better for it to reflect the common good and to instantiate justice. All of these are activities in which the Church may legitimately take part.

7.13 In a democracy, the approach taken is that those who object to particular laws should campaign for their amendment or repeal by the democratic legislature in accordance with the values of the constitution. But simply to claim that there is always and everywhere a right immediately to disobey the laws which the Church considers to contravene "natural law" is to threaten the integrity of the whole legal system which sustains the democratic State, and to seek to bring it down in anarchy and with it the very institutions which exist within a democracy to facilitate dialogue and change.
7.14 And it is just not good enough for any implicit comparison to be made between the legal and political systems which currently exist within Western democracies with that which existed in Nazi Germany. As we have seen, the case of the German legal system from 1933 to 1945 is one of a system which was systematically corrupted in its subordination to the Nazi tyranny such that all those who participated within it (and more generally in public life) were tainted by its failings. It became truly a system of and only of State oppression, such that it became no longer worthy of the name of a "legal system" because in no sense could it be said to embody or seek the common good. The only moral response in relation to such wholesale corruption was for the just to withdraw from any participation in it and, indeed, to seek to overthrow the regime - by "unlawful "revolutionary means if need be - which sustained it.

7.15 It does not seem to me that that is a situation which, on any view, could be said currently to hold within the legal systems of Western democracies. But if that is indeed the Church's assessment of those legal systems which make provision for the possibility of procured abortion, then the only option would be for the Church to instruct its members to withdraw wholly from participation in the public lives of these societies.

7.16 The overall tenor of at least John Paul II's remarks, however, seems to be more that while he accepts that some - indeed the majority - of the laws within Western democratic systems are indeed aimed at the common good, others - notably in relation to abortion and other issues associated with respect for human life - fail to achieve this ideal. But the proper response of the Church which continues to accept the overall legitimacy of the legal systems of Western democracies cannot be to call for revolt against the system as a whole, but instead to call for change in specific aspects and laws thereof. And if such change is indeed to be legitimate within the terms of the legal system it has to be one mandated by the accepted democratic and constitutional process. Accordingly, in order to promote such change it is necessary, to engage in debate within the market place of ideas. As one Jesuit commentator has put it:

"The willingness to subject the civil law and public policy to moral critique within ecumenical political dialogue must constitute the heart of the doctrine of the necessary conformity of the moral law and the civil law in a pluralistic society. That doctrine can be most fruitfully understood as a call for critical moral reflection on contemporary standards of civil law, rather than as a dogmatic insistence on the imposition of Christian morality on a religiously pluralistic society."

 

8. CITY OF GOD V. CITY OF MAN ?

8.1 The overall problem with the theocratic vision for society which has been articulated by some of the bishops is that while they would accept that individual have fundamental rights which fall to be respected by the community as a whole, they do not seem to regard the democratic process as being fundamental in the determination of the community interest. The Church - we are often is not a democracy - so why should civil society be so ?

8.2 Similarly there is no reason in this theocratic vision, for any fundamental structural importance given to freedom of speech for all, since the truth is known to and will be taught by the Church, and the spreading of erroneous views is more likely to cause harm than good by tempting people, in the words of the Catechism of the Catholic Church, "to prefer their own judgment and reject authoritative teachings".

8.3 And since on the theocratic vision laws gain their legitimacy not from the consent of the people, nor by the democratic process nor by their being judged constitutional by the courts, but rather from their conformity with Natural law, then there is no intrinsic respect given under this model for legality and due process. Rather the theocratic Church would require conscientious objection from all its members in respect of the application of laws which it considers to be unjust.

8.4 But the theocratic approach effectively makes it impossible for Catholics properly participate in good faith within the structures of a democratic State. By virtue of the theocratic approach, Catholics in public life are enjoined to pursue the values of the Church rather than of the State, the legitimacy of whose actions are contingent on their conforming to Catholic values and teaching. Thus Catholic voters are told that voting for a particular candidate is "sinful" and would be incompatible with their continued full participation in the life of the Church. Catholic members of the democratic legislature are then instructed not to act or vote in a manner which may be reflective of the views of the people who actually elected them to office, but instead to use their office to promote "Catholic legislation". Catholic members of the judiciary should use their office, not to protect and uphold the values of the constitution and laws of the State, but instead to decide cases in accordance with the dictates of "Natural law", as these are vouched to them by the bishops. And Catholic heads of government should not consider themselves answerable and accountable to the people, but instead to God and his Church. The idea that civic magistrates and leaders of the people hold office contingently on their adherence to and being in communion with the requirements of the Godly is a model of Church-State relations which was also developed in the reformed tradition by Calvin and his followers in 16th century Geneva and in 17th century Scotland.

8.5 But if the Catholic bishops are correct in their political philosophy, and that Catholicism entails theocracy, then it would seem that the post-Reformation British State got it right in seeking to exclude Catholics from public office. If a Catholic is to be a servant of God and the Church, then he cannot be a servant of the State. Catholic emancipation from the 19th century onward in the United Kingdom, and the gradual admission of Catholics to the franchise, to the universities and to offices of States (now excepting only Head of State) would appear to have been a major constitutional error.

8.6 Can the theocratic vision of (or for) the Church be reconciled with the democratic vision of the liberal pluralist State ? At first glance it would seem not. For the Church, authority (and legitimacy) comes from above, God revealing his laws through his Church to the obedient and faithful people. The democratic vision is, by contrast, one in which authority (and legitimacy) comes from below: the people decide on the content of their laws, no absolute or permanent authority is conferred on those chosen to lead them, and the voice of the people is the voice of God.

8.7 Perhaps the problem is in the bishops' implicit model for what a law is. That model seems to be one of command. A law is something telling you what to do, and if you fail to do it you will be punished. It is a demand from a superior to a subordinate, backed by threats. We may call it the "big stick theory" of legal obligation - obey or be punished. In claiming that their prescriptions as to what we ought to do will outweigh the individual's legal obligations, what at times seems to be being offered by way of model is the "bigger stick" - obey the bishop's prescriptions (for example in the way that you vote, either as a citizen or as a Parliamentarian) or place yourself "outside full communion with the Church and so jeopardize your Eternal salvation", to use the language of Bishop Michael Sheridan.

8.8 The model outlined above is also a dualist (indeed almost Manichean) model. On the one hand, you have the command of the State; on the other hand you have the commands of God (as mediated through his Church) which trumps human laws. On the one hand you are a citizen of the State; on the other hand you are a citizen of the kingdom of God, to which greater loyalty is due - "we must obey God rather than men". On the one hand you are a servant of the State; on the other hand you are a servant of God, but "no-one can serve two Masters: he will either hate the first and love the second, or treat the first with respect and the second with second with scorn. You cannot serve both God and Mammon". On the one hand you may be punished by the State for disobeying its law; on the other hand far greater (eternal) punishment will come the way of those who disobey the law of God.

8.9 One possible resolution of the "two masters" problem is simply for the State to nationalise the Church and asserts the authority of the secular arm over the spiritual, with the State's Parliament legislating for the Church, the Government making ecclesiastical (in particular Episcopal) appointments and the Head of State taking on the role of Supreme Governor of the Church. This is the model that was effectively followed in the case of the Church of England, and the Lutheran State churches of the Nordic countries. It is not a model which works so readily for a supra-national Church such as the Catholic Church, which avowedly transcends national and State boundaries.

8.10 Surely there is a way out of this impasse, because if the Church's teaching always has primacy over one's duties and obligations to the State, why should the State entrust any members of that Church with public office ? They cannot be trusted to suborn that office to the ends of the Church ?

8.11 It may be that the Church's teaching on "natural law" - that is to say that moral prescriptions are objectively based, and may be discerned by all people of good will reflecting on the presuppositions of what it is to be human - shows us the beginnings of a way out of this deadlock ? In Catholic teaching the requirements of moral action in any particular situation is not of necessity to be founded on Church dogma or based on specific divine revelation. It is, instead, to be established by reason. And to reason in human society is to engage in discourse, to argue, to debate, to consider. The problem of course, is that the old model of "law as command" sometimes infects the Church's pronouncement on "natural law", such that it becomes not something which we reason and argue over as rational beings one with another, but rather simply something the Church authorities tell you to do.

8.12 But if we are to take seriously the Church's reference to and reliance upon "natural law" as being an appeal to the rational natures of all human beings, then it may be understood as an invitation to everyone within civil society and the Church to enter into that debate - to seek in their dialogue the right answers. In remarks made on the fifth anniversary of Evangelium Vitae, there is some indication that John Paul II accepts that is not enough to insist on immediate change in civil laws which fail to conform to the Church teaching on the respect for the right to life. There must be a campaign for hearts and minds. He states:

"The changing of laws must be preceded and accompanied by the changing of mentalities and morals on a vast scale, in an extensive and visible way. In this area the Church will spare no effort, not can she accept negligence or guilty silence."

 

8.13 Dialogue, of course, implies ground rules. Where Archbishop Burke goes wrong is that he seeks to rely on his canonical authority and issue instructions and threaten sanctions, rather than actually engage in debate with those engaged in public life. In this he turns the life issue into sectarian ones - peculiar to the Church discipline of Catholicism - rather than, as the tradition has it, of natural law, issues which all persons of good will guided by the light of reason rather than revelation will see are objectively right. And in throwing his episcopal weight around in this way, he shows lack of respect for the democratic process and lack of appreciation that the democratic process has a moral weight in and of itself because it embodies the idea of the worth of each individual and seeks to reconcile individual conscience with the interests of the community.

8.14 But if the Church is indeed taking human rights seriously rather than instrumentally, it is also committed also to respecting these democratically mandated processes under which matters in dispute are resolved within civil society. This at least seems to have been accepted in principle by Pope John Paul II when he noted in his 1991 encyclical, Centesimus Annus:

"The Church values the democratic system inasmuch as it ensures the participation of citizens in making political choices, guarantees to the governed the possibility both of electing and holding accountable those who govern them, and of replacing them through peaceful means when appropriate. Thus she cannot encourage the formation of narrow ruling groups which usurp the power of the State for individual interests or for ideological ends. Authentic democracy is possible only in a State ruled by law, and on the basis of a correct conception of the human person."

 

9 THE PRIMACY OF CONSCIENCE

9.1 Perhaps the better approach in conceiving of the possibility of resolving for the individual the potentially conflicting claims of the spiritual and secular worlds would be for us to abandon altogether the language and metaphor of "masters" and "servants", and develop instead a model which has its basis on concepts such as dialogue, mutual respect and trust and confidence. And the key to the resolution of the matter may lie once again the individual taking responsibility for his actions. Church and State may indeed make conflicting claims upon the individual Catholic in public life but ultimately those demands have to result in action by that individual. What is to be done and how can it be justified ? We are driven inexorably back to the question of an individual's conscience.

9.2 Traditional Catholic moral teaching has always held that individuals must be accorded the right and freedom to act in accordance with the dictates of their conscience and to be free to make a positive decision to do good and avoid evil. The whole history of salvation is one predicated on free will and the individual making a choice. The Church has also taught that individuals have an obligation to seek to inform their consciences as to what is objectively the right thing to do. But the debate over the place of individual conscience in determining moral action seems to be bedeviled by a failure to make a distinction between the undoubted duty to inform one's conscience, and the much more problematic question of whether an individual can properly be required to conform his conscience and actions to the demands and expectations of others.

9.3 Being a Catholic does not mean the abdication of moral responsibility for one's own actions. As a Catholic one may be expected to have regard to authoritative texts within the Church's tradition, including: Scripture, official Vatican pronouncements on the requirements of the moral life, and the works of theologians and exegetes. The duty to inform one's conscience is not confined to looking at formal Church sources, however. Regard may also properly be had to, for example, the insights provided by modernity, science, medicine, psychology, philosophy, law, logic and experience. Having informed one's conscience to the best of one's ability, the duty of the moral agent is then to act in accordance with that informed conscience. To act contrary to that conscience is to act immorally. To purport to hand over one's moral responsibility to another - and to act in a manner simply because told to by some external source, whether it be Archbishop Burke or Cardinal Ratzinger - is to act immorally; committing, in Kantian terms, the sin of "willful heteronomy". As is stated in Gaudium et Spes the pastoral constitution, promulgated at the Second Vatican Council, on the Church in the modern world:

"God willed than men and women should be left free to make their own decisions, so that they might of their own accord seek their creator and freely attain their full and blessed perfection by cleaving to God. Their dignity, therefore, requires them to act out of conscious and free choice, and not by their own blind impulses or by external constraints."

9.4 One also needs distinguish between two quite distinct concepts: namely, an individual deciding how to act morally; and an individual judging on the morality of action. In Murder in the Cathedral, T. S. Eliot has the character of St. Thomas Becket exclaim that the "ultimate treason" would be "to do the right thing for the wrong reason". This is because to act against one's conscience is to betray oneself as a moral agent. If you act contrary to your conscience you act immorally, no matter what you do.

9.5 In Catholic tradition - and indeed to any moral philosophy which aspires to anything other than relativism - acting in accordance with conscience is not, however, sufficient to establish that an action will be judged (objectively) as being a moral one: one may well do the wrong thing, albeit in accordance with conscience and thus for the right reason. But to be judged to be moral, such action also has to be right action, that is to say action which is consonant with objective values. Ultimately then one can be said to act morally, and can be judged as having acting morally, only if one does the right thing for the right reason. The obligation to inform one's conscience clearly seeks to ensure that one does not fall into the situation of "moral perplexity", whereby no matter what one does, one does wrong.

9.6 As moral agents, we are impelled to try and seek a congruence between the subjective demands of conscience and the objective requirements of the good life, (commonly referred to in Catholic tradition as "natural law"). "Natural law" cannot, however, be defined or confined simply by the terms of prescriptions contained in documents emanating from the Vatican. Instead, as Thomas Aquinas notes the natural law is "written in the hearts of mankind". It may therefore be discerned by careful thought, reflection, and inquiry of what it is that makes sense of our lives and our human relationships, and is necessarily to be understood and determined within the particular historical context and circumstance within which we found ourselves. It is humanity's participation - through reason and intellect - in Creation, seeking to uncover or discover the underlying "grammar of conduct" which determines how our individual lives may be rightly ordered. But it is decidedly not a mechanism for deducing exceptionless moral imperatives or rules applicable, universally, always and everywhere. What Aquinas was describing in speaking of "natural law" was, instead, an orientation or predisposition in relation to some general and axiomatic (per se nota) and obvious natural human desires. He was not seeking to read off specific principles of right (which is to say, moral) conduct from his views on what was natural to humanity.

9.7 In the Catholic (Thomist) tradition, too, natural law is distinguished from Revelation, or indeed any form of command, order or direction - whether from the civil or religious authorities - backed by sanction. It is instead a way of realising how things really are, here and now. Human beings are relational beings, and not self-sufficient. And we begin to understand the structures and meanings of our lives together by communicating, engaging in dialogue, searching together. In theological terms, natural law describes action done in conformity with our God-given rational natures and in conformity with divine providence. Thus the natural law is realized, not in the formulation of general laws or propositions or moral precepts, but in the carrying out of things, in singular events done prudently and responsibly. For someone to "obey" the natural law (is on Aquinas' account) not for them to implement the prescriptions of a promulgated general code: rather it is a matter of their pursuing perceived goals, fostering apprehended values, intelligently, prudently, and responsibly. And ultimately as individual moral agents we each have to make those sorts of decisions on what to do - who to vote for - ourselves, and not because an Archbishop, a Cardinal or Pope tells us what to do. As the Venerable John Henry Newman noted:

"[C]onscience is not a judgment upon any speculative truth, any abstract doctrine, but bears immediately on conduct, on something to be done or not done. 'Conscience,' says St. Thomas, 'is the practical judgment or dictate of reason, by which we judge what hic et nunc is to be done as being good, or to be avoided as evil.'
[…]
[C]onscience being a practical dictate, a collision is possible between it and the Pope's authority only when the Pope legislates, or gives particular orders, and the like. But a Pope is not infallible in his laws, nor in his commands, nor in his acts of State, nor in his administration, nor in his public policy. Let it be observed that the [First] Vatican Council has left him just as it found him here.[…]
Since then infallibility alone could block the exercise of conscience, and the Pope is not infallible in that subject-matter in which conscience is of supreme authority, no deadlock … can take place between conscience and the Pope. … [I]ts dictate, in order to prevail against the voice of the Pope, must follow upon serious thought, prayer, and all available means of arriving at a right judgment on the matter in question.
[…]
Cardinal Gousset has adduced from the Fourth Lateran [Council]; that 'He who acts against his conscience loses his soul.' … Of course, if a man is culpable in being in error, which he might have escaped, had he been more in earnest, for that error he is answerable to God, but still he must act according to that error, while he is in it, because he in full sincerity thinks the error to be truth.
[…]
I add one remark. Certainly, if I am obliged to bring religion into after-dinner toasts, (which indeed does not seem quite the thing) I shall drink 'the Pope', if you please, still, 'to Conscience first, and to the Pope afterwards'."

9.7 Each of us will ultimately be answerable in Judgment for the actions which we ourselves do and the inaction for which we are responsible. As John Paul II states in Evangelium Vitae (at paragraph 74):

"Each individual in fact has moral responsibility for the acts which he personally performs; no one can be exempted from this responsibility, and on the basis of it everyone will be judged by God himself (cf. Rom 2:6; 14:12)."

10. KENOSIS: THE HIERARCHY, HUMILITY AND THE BEGINNING OF DIALOGUE

10.1 The Congregation of the Doctrine of the Faith in its 2003 Communication attacking proposals for the legal recognition of same sex unions recognizes the primary importance of individual conscience, by alluding to the existence of a right (or, indeed in certain circumstances a duty) of "conscientious objection" over the demands of the law. Of necessity, that same right of informed conscientious objection has to be conceded within the institutional Church if the baptized are to remain moral agents. As Father (subsequently Cardinal) Joseph Ratzinger has himself said:

"Over the Pope as the expression of the binding claim of ecclesiastical authority, there still stands one's own conscience, which must be obeyed before all else, even if necessary against the requirements of ecclesiastical authority. This emphasis on the individual, whose conscience confronts him with a supreme and ultimate tribunal, and one in which the last resort is beyond the claim of external social groups, even of the official Church, also establishes a principle in opposition to increasing totalitarianism."