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
"The Church respects the legitimate autonomy of the democratic order and is not entitled to express preferences for this or that institutional or constitutional solution."
1. THE TEMPTATION OF SHARI'A
1.1 In Luke 12:13 the following exchange is noted:
"A man in the crowd said to Jesus, 'Master, tell my brother to give me a share of our inheritance'. 'My friend', Jesus replied, 'who appointed me your judge, or the arbiter of your claims ?'"
Jesus, then, declines jurisdiction. He refuses to become involved in a dispute between brothers. He does not step in and seek to reconcile or conciliate between the parties to a family breakdown. He expresses no view on the merits of the complaint, on the justice of the claim of one brother over another. And he avoids the task on adjudicating over the matter, it would seem, because there are already existing mechanisms for the resolution of disputes of this nature. There are rules to be applied, lawyers to argue over them, and civil judges to apply them.
1.2 This Scriptural text might therefore be seen as an assertion or confirmation that the Christian tradition is one which is mindful of the distinction between the political and the religious spheres, and recognises the autonomy of the State and civil law from the Church and from religious law. The text might also be interpreted as a warning to the Church to avoid what may be called "the temptation of shari'a" - that is to say, the project of seeking to have the civil laws of a society mirror religiously based laws.
1.3 My concern is that the terms of certain recent pronouncements emanating from the Vatican and from individual bishops would seem to indicate that the Church has given into this temptation. The particular documents which have given rise to this concern include the following:
(i) John Paul II: Papal Address to the Roman Rota on "Divorce and the duties of canon lawyers and of Catholic civil lawyers and judges" (28 January 2002, the Memorial of St. Thomas Aquinas);
(ii) Congregation for the Doctrine of the Faith: Doctrinal Note on some questions regarding the participation of Catholics in political life (24 November 2002, Solemnity of Christ the King)
(iii) Congregation for the Doctrine of the Faith Considerations regarding proposals to give legal recognition to unions between homosexual persons (3 June 2003, the Memorial of Saint Charles Lwanga and his Companions, Martyrs.)
(iv) Archbishop Raymond Burke of St. Louis, Missouri, USA: On Our Civic Responsibility for the Common Good 1 (1 October 2004, the Memorial of St. Thérèse of Lisieux)
2. SCOTTISH CATHOLICISM
2.1 I am a lawyer. I practise in the area of human rights. I have a particular interest in European and constitutional law. I am also a Catholic, although to understand that last statement it is perhaps necessary to unpack more of my personal history and upbringing.
2.2 My Catholicism is, in one sense, tribal. I was born into it - as the sixth of nine children, all but one of whom survived to adulthood. My parents were Catholics of good standing, both teachers in the wholly State-funded Catholic school sector in Scotland. The Catholicism into which I was born was Scottish Catholicism, which by the time I was born was composed primarily of third or fourth generation descendants of immigrants to Scotland, predominantly from Ireland but also from Italy, Lithuania, Poland and the Ukraine. Catholics in the west central belt of Scotland where I was brought up sometimes comprised 50% and over of the predominantly coal-mining and steel-producing communities in which they lived, but taking Scotland as a whole, the proportion of Catholics was just under 20%. Catholics in Scotland when I was growing up were overwhelmingly working class in culture, although there were also the beginnings of a Catholic middle class, school teachers, publicans and criminal lawyers being in the vanguard of its creation.
2.3 Growing up Catholic in Scotland in the 1960s involved, however, a series of "not-belongings" or dislocations. One didn't feel wholly Scottish, since the then dominant cultural myth of what it was to be Scottish seemed to be one that commenced with the Reformation of 1560 and John Knox denouncing Mary, Queen of Scots for her "foreign harlotry". Despite many of our forenames and surnames, we didn't feel ourselves to be Irish - they had a different accent and attitude to life, and a wholly different politics and history. We were certainly not English. But even any sense of "Britishness" was fraught with difficulties, given that we knew that the Monarch vowed to uphold the Protestant religion and would lose any claim to the throne on becoming or marrying a Catholic.
2.4 The one identity one could be sure of, however, was one's being a Catholic. And the Church we experienced - as a minority Church in a historically hostile land - was one marked by solidarity with the poor, the down-trodden, the immigrant, the oppressed. Our Church gained moral authority and respect for that. We had little, if any, of the oppressive experiences which marked Irish Catholicism in the age of DeValera where strong social and political power rested in (and was abused by) members of the clergy and religious. Instead, to identify as a Catholic in Scotland, was to identify with the powerless and those discriminated against. It was to accept a calling to witness to truth and to fight against injustice. It was all one seamless web.
2.5 Much has changed since the early 1960s of course. Things were perhaps easier and more straightforward when Catholics were marginalized or could claim to be oppressed by the State. Then the moral imperative was simply to hold on to the "faith of our fathers … in spite of dungeon, fire and sword." In such a situation the position of the Church could simply be one of separation from the workings of the State, and opposition to its more oppressive elements. The problem is, now, that those who hold the keys to the dungeon and the handle of the sword, who wield executive, legislative and judicial power in the British State are themselves often members of the Church. Catholics in Scotland and in the United Kingdom as a whole have a surer sense of belonging within this realm. British identity which, on Linda Colley's thesis was forged in the eighteenth century with the marriage of patriotism with Protestantism, has largely shed its distinctively anti-Catholic basis. These islands' vestigial anti-Catholicism grows ever weaker. Catholics have become more visible and explicitly involved in the public life of the nation. We have Catholic judges, Catholic peers, Catholic MPs, a Catholic as Speaker of the House of Commons, Catholic members of the Cabinet, a Catholic heading the BBC, Catholics elected as leaders of the major political parties, Catholic royals (although excluded by virtue of their Catholicism from the right of succession to the throne), Catholic university professors and Catholics as EU Commissioners. Even the present Archbishop of Canterbury, Dr. Rowan Williams, is reported to have considered becoming a Catholic at an earlier stage in his ecclesiastical career, while the former Anglican Bishop of London, Dr. Graham Leonard, has already taken that course. And the Prime Minister (whose wife and children are Catholic) regularly attends Mass with his family and, if recent Press reports are to be believed, has himself given serious thought to converting to Catholicism, at least once he demits office.
2.6 Catholics now take a prominent and leading role in the public life of the British State. The question I wish to address is whether we can indeed fully, unreservedly, and conscientiously carry out the duties of our various public offices in accordance with the laws and constitution of the democratic and pluralist State in which we live ? Or does the fact of our being Catholic mean that our ultimate loyalty, even in the performance of their public office, lies elsewhere ? Put crudely, are Catholics committed by their religion to being the Pope's "Fifth Columnists", supporting the structures and laws of the State only insofar as permitted to do so by the institutional Church. Or can one instead be both a faithful Catholic and a loyal citizen of the State ?
2.7 My hope is that the answer to that last question is "yes" - otherwise I would have to give up either my job (admission to which involved my giving in open court an oath of fidelity and allegiance to the Queen) - or my religion. But my fear is that some of the presentation of official Catholic teaching on this matter is not as clear as it should be (or, perhaps, it is too clear). My concern is, in particular, that some of the language used, the images chosen, the metaphors adopted in aforementioned Church documents, among others. place real difficulties in our being able to say with absolute confidence that one can be a loyal subject of both God and the King, or of both the Church and Parliament. And if those two loyalties cannot, in fact, be reconciled, then the issue as to whether Catholics can properly accept or be appointed to public office in the State arises. Does the Church require, in effect, the withdrawal (or rejection) of Catholics from public life ?
2.8 The root of the problem is this: can the Church reconcile itself to democracy ? I am interested then - as a citizen of the UK (and EU), as a lawyer, as a Catholic - in the inter-relationship among: those who are invested with a form of legal (canonical) authority within the institutional Catholic Church - the Vatican, national episcopal conferences, and individual bishops; those who exercise legal authority within the democratic state - Government ministers, legislators and judges; and the people in whose name - and over whom - such authority is sought to be exercised.
2.9 More concretely, I want to examine the question as to if, when and how the clergy should seek to exert their influence within the political sphere. In particular, I wish to consider whether the bishops of the Catholic Church should seek to use their ecclesiastical authority (over the faithful) to oppose or promote changes in the laws which apply to all within our society and/or to influence the way we might vote. I want to examine the implication that the use of such ecclesiastical authority for the States we live in.
2.10 This is a big and complex area. It involves the interplay of politics and theology; of private and public morality. It touches on the role of teaching office of the Church and the assent (and possibility of dissent) on the part of the faithful. It takes in questions of conscientious objection and unjust laws. It concerns individual conscience and the hope of salvation. It is about voting and sinning. It is about judging, and being judged.
3. THE EUCHARIST, THE VOTE AND THE US PRESIDENTIAL ELECTION
3.1 These matters have a certain topicality both in the United States (in the context of their recent Presidential election) and in the European Union - with the furore over whether there should be explicit mention of Christianity in the foreword of the new European Constitution, and over the suitability of one Dr. Rocco Buttiglione to be appointed an EU Commissioner in charge of its justice and anti-discrimination programme. More recently yet, the appointment in the UK of Ms. Ruth Kelly, a member of Opus Dei, to the Cabinet post of Secretary of State for Education has also raised the issue of the compatibility of duties of an individual's Catholicism with the carrying out of public political duties.
3.2 The problem came to particular prominence over the last year in the public pronouncements by a number of US Bishops that they would refuse Communion to Catholic politicians, who in their work as legislators were deemed by the bishop to have shown "support" for abortion or the legalisation of euthanasia, or stem-cell research, or for same sex marriage. In January 2004 Bishop Raymond Burke - then bishop of the diocese of LaCrosse, Wisconsin - published a canonical notification in the diocesan newspaper in which he stated that Catholic politicians, who in their work as legislators were deemed by the bishop to have shown "support" for abortion or the legalisation of euthanasia, would not be admitted to Communion within "his diocese". Bishop Burke was subsequently installed as Archbishop of St. Louis, Missouri. As Archbishop, he specified that the Catholic US presidential candidate, John Kerry would be refused communion and that individual Catholic voters who voted for him in the election should also be excluded from communion until such time as they had confessed and repented their "sin" in voting for such "a pro-choice politician". We saw, then, the paradoxical position of a Catholic prelate effectively campaigning against the Catholic candidate for high public office and favouring, instead, the candidacy of the professed born-again Methodist-Evangelical incumbent. Another American bishop, Bishop Michael Sheridan of Colorado Springs, also stated that the act of voting for politicians whom he judged to have fallen into error on the issue of the regulation of abortion and the legalization of gay marriage constituted a serious sin. In a Pastoral letter issued in May 2004 he stated:
"There must be no confusion on these matters. Any Catholic politicians who advocate for abortion, for illicit stem cell research or for any form of euthanasia ipso facto place themselves outside full communion with the Church and so jeopardize their salvation. Any Catholics who vote for candidates who stand for abortion, illicit stem cell research or euthanasia suffer the same fateful consequences.
As in the matter of abortion any Catholic politician who would promote so-called 'same-sex marriage' and any Catholic who would vote for that political candidate place themselves outside the full communion of the Church and may not receive Holy Communion until they have recanted their positions and been reconciled [with God and the Church] by the Sacrament of Penance."
3.3 It is perhaps noteworthy that these same bishops appeared willing to continue to give Communion to Catholic politicians who supported the continued use of the death penalty in the United States, who were in favour of the pre-emptive military strike on Iraq, and who supported the continued stock-piling of nuclear weapons and other weapons of mass destruction by Western interests. In response to these individual bishops' pronouncements, the US bishops' conference issued in June 2004 a public statement - "Catholics in political life" - in which they appeared to uphold an individual bishops' right to proclaim such diocese-specific "excommunications" while allowing that :
"bishops can legitimately make different judgments on the most prudent course of pastoral action".
3.4 Cardinal Ratzinger's approach to the issue was, perhaps, more nuanced than some of the more rigorist American bishops, such as Burke and Sheridan. In a memorandum to the President of the US Episcopal conference he stated that a Catholic politician who consistently campaigned and voted for permissive abortion and euthanasia laws and any individual Catholic who deliberately voted for a politician "precisely because of the candidate's permissive stand on abortion and/or euthanasia" would be guilty of "formal co-operation in evil" and therefore would be deemed "unworthy" to present himself or herself to Communion. Cardinal Ratzinger did leave open the possibility that an individual voter might have "proportionate reasons" for voting for such a candidate despite their stand on abortion and/or euthanasia. The Cardinal asserted, too, that "not all moral issues have the same moral weight as abortion and euthanasia". While the Catholic Church has always and everywhere taught that abortion and euthanasia "intrinsically evil" it has not shown such consistency as regards the death penalty or just war. Accordingly Cardinal Ratzinger allowed that:
"there may be legitimate diversity of opinion, even among Catholics, about waging war and applying the death penalty but not however with regard to abortion and euthanasia."
3.5 Archbishop Burke came back into the fray with the publication, on 1 October 2004, of a new pastoral letter entitled "On Our Civic Responsibility for the Common Good" in which he expanded on his earlier positions, and stated that individuals had a moral duty both to vote and to use that vote against any candidate supporting, inter alia, same sex marriage no matter that candidate's position on any other issues. He noted:
"As Archbishop … I write now to assist you in informing your consciences as fully as possible, regarding your responsibilities as a citizen. I do not claim to be wise and can offer no wisdom of my own. What I give you is the wisdom of the Church, the wisdom of Christ.
Some Catholics have suggested that a candidate's position on the death penalty and war are as important as his or her position on procured abortion or same sex marriage. This, however, is not true. Procured abortion and homosexual acts are intrinsically evil and as such can never be justified in any circumstances. Although war and capital punishment can rarely be justified, they are not intrinsically evil. Neither practice includes the direct intention of killing innocent human beings. In some circumstances, self-defence and defence of the nation are not only rights but responsibilities. Neither individuals nor governments can be denied the right of lawful defence in appropriate circumstances.
But there is no element of the common good, no morally good practice that a candidate may promote and to which a voter may be dedicated which could justify voting for a candidate who also endorses and supports the deliberate killing of the innocent, abortion, embryonic stem cell research, euthanasia, human cloning or the recognition of a same sex relationship as legal marriage. These elements are so fundamental to the common good that they cannot be subordinated to any other cause, no matter how good."
3.6 Although the point was not specifically raised, the logic of the bishops' position - at least within the US constitutional context - should lead them also to direct their threats of ecclesiastical sanctions also against those Catholic judges who fail to favour the "pro-life position" in cases before their courts. In particular, three (Scalia, Thomas and Kennedy JJ.) of the nine current justice of the US Supreme Court are Catholic and if, as expected the next nominee to the Supreme Bench is Hispanic there is an increased likelihood of the new nominees also being Catholic. Should Archbishop Burke not also be threatening to withhold communion to these Justices on the basis of how they vote and reason in particular cases before them ? In particular, the Supreme Court Justices' failure or delay in overturning the 1972 case of Roe v. Wade - which declared that access to abortion was a right covered by the implicit right (read into the US Constitution) to respect for an individual's private life, and that therefore federal or State laws which, on the court's estimate, unduly restricted access to abortion would be struck down as unconstitutional - directly impacts upon the availability of abortion in the United States far more than, say John Kerry's voting record in the US Senate. Just five individuals' votes US Supreme Court could result in the de-constitutionalisation of abortion and the restoration of its regulation to the legislatures of the individual States. But if the votes of the Supreme Court Justices are determined not by law or the terms of the constitution, but by the requirements of their religion (as told to them by their bishops) is there not a problem about separation of powers and of Church and State ? One suspects that any episcopal attempt to dictate to Catholic judges (whether in the US or the UK) would result in a backlash against religious interference in the affairs of the State. But is unclear why - for other than prudential reasons - the bishops should not be asserting their authority over those of their flock who hold judicial office, just as they have sought to assert it over those who or seek executive or legislative office, and over those citizens who might vote them into such office.
3.7 Whether or not this stark approach to the issues - which would appear to reduce Catholic social teaching ultimately to the one stark issue of the legal availability of abortion - does in fact accurately reflect the full tradition of Church teaching under which Catholics are exhorted fully to participate in public life and "to reject as unacceptable all forms of violence, to promote attitudes of dialogue and peace and to commit themselves to establish a just international and social order" - is a matter for another paper. One may note at this stage, however, the words of Pope John Paul II in his recent encyclical letter Ecclesia de Eucharistia:
"Many problems darken the horizon of our time. We need but think of the urgent need to work for peace, to base relationships between peoples on solid premises of justice and solidarity, and to defend human life from conception to its natural end. And what should we say of the thousand inconsistencies of a globalized world where the weakest, the most powerless and the poorest appear to have so little hope! It is in this world that Christian hope must shine forth!"
"Many problems darken the horizon of our time. We need but think of the urgent need to work for peace, to base relationships between peoples on solid premises of justice and solidarity, and to defend human life from conception to its natural end. And what should we say of the thousand inconsistencies of a globalized world where the weakest, the most powerless and the poorest appear to have so little hope! It is in this world that Christian hope must shine forth!"
3.8 For the purposes of the present paper, however, the interesting thing about these controversies is that they indicate a growing readiness on the part of sections of the Catholic hierarchy directly to intervene in the political sphere and threaten the use of ecclesiastical sanctions against Catholic politicians and Catholic voters if they fail to act in accord with the bishops' instructions. But what sort of model of the relationship of Church to State do any such instructions to politicians and voters suppose ? And is such a model compatible with the possibility of Catholics continuing to participate in public life - as legislators, judges, administrators, and indeed voters - within liberal pluralist democracies ?
4. A "NECESSARY CONFORMITY OF CIVIL LAW WITH THE MORAL LAW" ? - CATHOLIC LAWS FOR A GODLESS POLITY
4.1 But what is the problem ? The bishops protest that all that they are doing in making their public pronouncements is exercising the prophetic and teaching function that inheres in their episcopal office. They would say that they are not illicitly interfering in the political sphere, but are simply reiterating the Church's constant social teaching on respect for life and on matters of sexual ethics. They are just doing their job. But of course they are not just teaching; they are directing, they are giving orders and issuing threats. Their claim is that it is "sinful" to vote in a particular way and they seek to impose such sanctions as they have at their disposal - exclusion from Communion - in an apparent attempt to enforce uniformity and discipline among their flock. Theirs, then, is a model of society in which people can be told how to vote and punished - at least ecclesiastically - if they fail to exercise the vote in the required manner.
4.2 If the bishops' threatened use of Church disciplinary measures against the recalcitrant "liberals" were successful, and the faithful then obeyed their instructions on the use of their franchise, what would then be created would be a Catholic bloc vote, which could be delivered on call. The bishops would thus become powerful political players, of similar influence and importance to the trade union barons of old Labour or to the lords of Tammany Hall. In this way the institutional Church might increase its power within civil society - even where Catholics form a minority of the electorate - and politicians would once again fear the wrath and condemnation of turbulent priests.
4.3 The legislature (and courts) within such a society - in which Catholic voters voted for the political candidate favoured by the bishops, and where Catholic citizens, legislators (and judges) voted in accordance with the bishops' moral instructions - might be expected to push through a radical legal programme. Given the tone of some of the more recent pronouncements emanating from the Vatican this specifically "Catholic agenda" might include such issues as:
- the State's acceptance of the jurisdiction of the international criminal court over its nationals;
- the domestic re-criminalisation of abortion and the banning of IUDs and the morning-after pill;
- the outlawing of human embryonic stem cell research and any therapeutic or reproductive cloning of human embryos;
- strict regulatory control on the use of human in vitro fertilisation with a view to avoiding the creation of "excess embryos" and the prohibition of surrogacy and donor arrangements in relation to assisted pregnancy;
- strengthening the laws against euthanasia or any physician assisted suicide;
- the improvement of prison conditions and the abolition (except, perhaps, in the most extreme circumstances) of the death penalty;
- limitation on the availability of contraceptives and the positive promotion of a sex education curriculum directed against the fostering of a "contraceptive mentality";
- withdrawing legal recognition from unmarried de facto family relationships;
- making divorce more difficult, and - conceivably - also prohibiting remarriage after divorce;
- supporting measures aimed at allowing women to participate equally and without suffering discrimination in the workplace;
- promoting measures aimed the integration of people with disabilities within society, and particularly to ensure their non-discrimination within the workplace;
- withdrawal of the protection of any anti-discrimination legislation covering sexual orientation and a veto over any possible legal recognition of same sex unions; and
- the licensing and encouragement of (beneficial) bio-technological innovations (including genetic modification) in the area of plant and (non-human) animal life.
4.4 The passing and enforcement of such a legislative programme would not depend on there being a general consensus among the electorate, or even a majority opinion in their favour, since legislation of this nature would be intended to instantiate the "Natural Law" which sets out the objective standards of justice and morality applicable to all. As Pope John Paul II has written:
"Democracy cannot be idolized to the point of making it a substitute for morality or a panacea for immorality. Fundamentally, democracy is a 'system' and as such is a means and not an end. Its 'moral' value is not automatic, but depends on conformity to the moral law to which it, like every other form of human behaviour, must be subject. … [T]he value of democracy stands or falls with the values which it embodies and promotes.… The basis of these values cannot be provisional and changeable 'majority' opinions, but only the acknowledgment of an objective moral law which, as the 'natural law' written in the human heart, is the obligatory point of reference for civil law itself.
Even in participatory systems of government, the regulation of interests often occurs to the advantage of the most powerful, since they are the ones most capable of manoeuvering not only the levers of power but also of shaping the formation of consensus. In such a situation, democracy easily becomes an empty word.
It is therefore urgently necessary, for the future of society and the development of a sound democracy, to rediscover those essential and innate human and moral values which flow from the very truth of the human being and express and safeguard the dignity of the person: values which no individual, no majority and no State can ever create, modify or destroy, but must only acknowledge, respect and promote."
4.5 These radical "Catholic" laws (and judicial decisions) would seem, then, to gain their binding force and legitimacy not from any consent of the people, but from the fact that they are said to reflect the world as God intended it. The model assumes that it can be said that God created man - and the rest of creation - with a fundamentally fixed "nature" or essence. It further assumes that by careful observation, it is possible to discern certain "natural laws" which govern the appropriate exercise of that nature. These natural law are in principle immutable - since human nature is said to be an unchanging "given". And all and any action contrary to these natural laws will be, in all circumstances, objectively immoral since contrary to nature and to God's purpose.
4.6 Further it assumes that the civil law of the State should reflect and enforce these moral norms of natural law. As the Congregation for the Doctrine of the Faith puts it:
"Civil law cannot contradict right reason without losing its binding force on conscience. Every humanly-created law is legitimate insofar as it is consistent with the natural moral law, recognized by right reason, and insofar as it respects the inalienable rights of every person."
And in Evangelium Vitae, Pope John Paul II stated that:
"The doctrine on the necessary conformity of civil law with the moral law is in continuity with the whole tradition of the Church".
4.7 By contrast, however, Aquinas held that it was not the business of human law either to restrain all moral vices, or to require all virtuous acts. Immorality did not map directly on to illegality. This apparent collapsing of the careful distinctions made by Aquinas in these more recent Vatican and Papal pronouncements does look as if the temptation of shari'a, outlined at the outset, has been given into by the Catholic Church, and that the idea of a proper divergence between the moral order and the civil law has been lost sight of. And the failure to recognise the independent dignity and integrity of the system of the positive law of civil society as itself creating a normative order of binding obligations - regardless of its supposed consistency or congruence with the moral order - seems to have arisen from a profound lack of sympathy on the part of the Vatican with legal developments, particularly occurring in Western democratic societies in the areas of sexuality, family and life issues.
4.8 What, then, is the difference between such an agenda, and the calls made by radical Islamists for the imposition in all Muslim countries of shari'a law, based on the Qu'ran, sayings of the Prophet and the subsequent writings of Islamic scholars ? Why for example should Catholic prelates not be calling for the criminalisation of adultery such as was recently proposed in Turkey. Adultery is after all a clear breach of one of the Ten Commandments, an objectively immoral act which undermines the family and therefore, on Catholic teaching, the very basis for civil society ?
4.9 Paradoxically, the push for a "Catholic" legal agenda such as that outlined above would, if anything, be more radical in its scope than the Islamic programme. This is because the Church contends that the moral standards which it seeks to proclaim are not simply mandated by any specific Divine revelation or founded on any authoritative religious text, but are instead discernible as the products of rational reflection on the human condition. They are therefore standards which everyone, regardless of religious belief or culture, can properly be expected to recognise and affirm. As is stated in Veritatis Splendor:
"[O]nly by obedience to universal moral norms does man find full confirmation of his personal uniqueness and the possibility of authentic moral growth. For this very reason, this service is also directed to all mankind: it is not only for individuals but also for the community, for society as such. These norms in fact represent the unshakable foundation and solid guarantee of a just and peaceful human coexistence, and hence of genuine democracy, which can come into being and develop only on the basis of the equality of all its members, who possess common rights and duties. When it is a matter of the moral norms prohibiting intrinsic evil, there are no privileges or exceptions for anyone. It makes no difference whether one is the master of the world or the 'poorest of the poor' on the face of the earth. Before the demands of morality we are all absolutely equal.
Even though intentions may sometimes be good, and circumstances frequently difficult, civil authorities and particular individuals never have authority to violate the fundamental and inalienable rights of the human person. In the end, only a morality which acknowledges certain norms as valid always and for everyone, with no exception, can guarantee the ethical foundation of social coexistence, both on the national and international levels."
4.10 But it is rather difficult to fit in this high theocratic vision with the democratic ideals to which Western civil societies now adhere, and which our politicians so zealously seek to spread among the nations of the developing and of the Islamic worlds. The bishops' vision of the City of God being realized on earth leaves little room in it for the (potentially various) voices of the people. This is a problem.
5. CATHOLICISM, CONSCIENTIOUS OBJECTION AND UNJUST LAWS
5.1 And in the interim, while waiting for the establishment of this Godly State, what do the bishops tell us should be the attitude of Catholic Christians to those apparently objectionable civil laws which still hold their place in the statute book on the constitutional or fundamental rights rulings of the courts ? The episcopal critique of such laws has, of late, tended to use the language of fundamental or human rights. Thus, in the Vatican's recent Compendium of the Social Doctrine of the Church the following is stated:
"The movement towards the identification and proclamation of human rights is one of the most significant attempts to respond effectively to the inescapable demands of human dignity.
The ultimate source of human rights is not found in the mere will of human beings, in the reality of the State, in public powers, but in man himself and in God his Creator. These rights are 'universal, inviolable, inalienable'. Universal because they are present in all human beings without exception of time, place or subject. Inviolable insofar as 'they are inherent in the human person and in human dignity' and because 'it would be vain to proclaim rights, if at the same time everything were not done to ensure the duty of respecting them by all people, everywhere, and for all people'. Inalienable insofar as 'no one can legitimately deprive another person, whoever they may be, of these rights, since this would do violence to their nature'."
5.2 And Church authorities have relied upon the right to freedom of religion and freedom of expression as the basis for asserting their own entitlement to intervene in issues of public policy which impact upon issues of morality.
5.3 The problem with many of the documents emanating from the Vatican (and some of the more politically activist bishops) is that they show little or no awareness either of what use of the language of human rights within the context of a civil democratic society commits them to as a matter of process. And there seems little awareness, at times, of the complexities involved in the process of the rule of law and the fact that fidelity to the values of legality and constitutionality is itself a moral requirement for participation in the public life of a democracy.
5.4 Instead the model for the relationship of the individual to the State which is put forward is that the individual's obedience to the laws of the State (no matter the position he holds within the State) is always contingent on a judgment that those laws conform to the demands of God, as mediated through His Church. Thus the Catechism of the Catholic Church states:
"The citizen is obliged in conscience not to follow the directives of civil authorities when they are contrary to the demands of the moral order, to the fundamental rights of persons or the teachings of the Gospel. Refusing obedience to civil authorities, when their demands are contrary to those of an upright conscience, finds its justification in the distinction between serving God and serving the political community."
and in Evangelium Vitae, John Paul II states that:
"Laws which authorize and promote abortion and euthanasia are … radically opposed not only to the good of the individual but also to the common good; as such they are completely lacking in authentic juridical validity. … [A] civil law authorizing abortion or euthanasia ceases by that very fact to be a true, morally binding civil law. Abortion and euthanasia are thus crimes which no human law can claim to legitimize. There is no obligation in conscience to obey such laws; instead there is a grave and clear obligation to oppose them by conscientious objection
It is precisely from obedience to God -to whom alone is due that fear which is acknowledgment of his absolute sovereignty-that the strength and the courage to resist unjust human laws are born. It is the strength and the courage of those prepared even to be imprisoned or put to the sword, in the certainty that this is what makes for 'the endurance and faith of the saints' (Rev 13:10)."
5.5 There is a paradoxical reliance in this passage on the primacy of individual conscience - apparently otherwise denied (at least by Archbishop Burke) to legislators and voters - and the use of the language of the Apocalypse to deny the binding nature, and legal validity, of laws with which the Church is in disagreement. Comparisons are drawn with the early Christian martyrs of Ancient Rome. At the same time, however, John Paul II seeks the protection of the civil law for those who would disobey those laws from which the Church dissents, noting:
"[M]orally upright people … have a right to demand not to be forced to take part in morally evil actions. Sometimes the choices which have to be made are difficult; they may require the sacrifice of prestigious professional positions or the relinquishing of reasonable hopes of career advancement.
To refuse to take part in committing an injustice is not only a moral duty; it is also a basic human right. … Those who have recourse to conscientious objection must be protected not only from legal penalties but also from any negative effects on the legal, disciplinary, financial and professional plane."
5.6 What the Pope seems here to be calling for is a legally guaranteed right for individuals - in the name of individual conscience - to dissent from and oppose laws with which that individual is in moral disagreement. But it is difficult to see how any legal system within a democratic society could give carte blanche for its citizens to engage such a pick-and-choose approach to legality. Indeed such an attitude to the civil law taken by the Church authorities may be seen to parallel the accusations that are made against (liberal) Catholics who seek to engage in debate over certain aspects of official Church teaching that they are indulging in "à la carte Catholicism". The Church is in danger of indulging in "a la carte constitutionalism" when it states:
"The right to conscientious objection
It is a grave duty of conscience not to co-operate even formally in practices which although permitted by civil legislation are contrary to the Law of God. Such co-operation can never be justified, not by invoking respect for the freedom of others nor by appealing to the fact that it is foreseen and required by the civil law. …
The right to resist
Recognizing that natural law is the basis for and places limits on positive law means admitting that it is legitimate to resist authority should it violate in a serious and repeated manner the essential principles of natural law. Saint Thomas Aquinas writes (in Summa Theologiae IIa-IIae q 104 a. 6 ad 3um) that 'one is obliged to obey … insofar as it is required by the order of justice.' Natural law is therefore the basis of the right to resistance.
There can be many different concrete ways this right may be exercised; there are also many different ends that may be pursued. Resistance to authority is meant to attest to the validity of a different way of looking at things, whether the intent is to achieve partial change, for example, modifying certain laws, or to fight for radical change in the situation.
The gravity of the danger that recourse to violence entails today makes it preferable in any case that passive resistance be practiced, which is 'a way more conformable to moral principles and having no less prospects of success'."
5.7 But the simple (repeated) assertion that a law which the Church considers to be unjust is neither morally or legally binding on individuals - and that these individuals have a duty to resist such laws - in fact, fails to do justice to a complex and weighty problem. It appears, on its face, to contravene traditional Catholic moral teaching in suggesting that the good end (achievement of a result consistent with Church teaching) justifies the means (disobeying the duly enacted law). If the Church is indeed going to promote conscientious objection to the laws of civil society it needs to do better than that.
5.8 True conscientious objection, instead, has to be rooted in fidelity to the legal values of civil society, and to the democratic process which produced the whole corpus of law. Otherwise it becomes nothing more than a manifestation of contempt for the laws and the political system which sustains it.
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."
"[T]he marginalisation of Christianity … would threaten the very spiritual and cultural foundations of civilisation."