wondered how you as a Christian lawyer of Catholic Persuasion thought about the state of the world today. So I have a few questions to ask if you don’t mind.
Very happy to respond to your great questions
@adrian009 I shall deal with them one by one (and perhaps not all tonight), as they require full answers.
Do you believe humanity would benefit from laws and ordinances from God to meet the challenges of nation building and international cooperation?
Catholicism is a
'natural law' faith tradition.
This philosophy is distinct from the '
divine command' theory common to some Protestant theologies
and religious systems with revealed positive law (i.e. Judaism and Islam).
We, and I myself, are not of the view that human beings require a divinely ordained positive law as in Mosaic times -
which I would refer to as "legislation" - for the purpose of consolidating nation-states or solidifying international relations between them.
Through the moral intuitions of conscience and reason, human beings have direct access to the Natural Law, which itself participates in the Eternal Law (the Mind of God). Because of original sin, our ability to comprehend the natural law will never be perfect, and so perfection cannot be expected from any temporal legal systems. In this way, Catholics believe that the state cannot '
legislate morality':
"In order for all persons to exercise their liberty, the state must tolerate those freely chosen actions of citizens of which it disapproves." (William Galston, Liberal Purposes, (Cambridge: Cambridge University Press, 1991), p.222)
https://www.google.co.uk/amp/s/amp....belief/2012/mar/05/thomas-aquinas-natural-law
[For Aquinas] law is not about individual morality, and individual vices should only be legislated against when they threaten harm to others. Unlike Aristotle, Aquinas believed that an informed conscience takes precedence over law. No individual should obey a law that he or she believes to be unjust, because laws that violate reason are not laws. Moreover, laws must have sufficient flexibility to be waived when necessary in the interests of the common good.
This last part is critical: if a piece of legislation is regard as 'divinely authored', it cannot have the flexibility to be waived when it conflicts with the common good. And the law must always serve the common good.
Saint Thomas Aquinas and Saint Augustine of Hippo both maintained that prostitution was gravely immoral, for instance, and thus out of keeping with their religion. Yet they did not see its immorality as sufficient to justify a legal proscription of the practice by civil governments. Aquinas advocated tolerance of prostitution by noting:
“
Accordingly in human government also, those who are in authority rightly tolerate certain evils, lest certain goods be lost, or certain evils be incurred: thus Augustine says [De ordine 2.4]: ‘If you do away with harlots, the world will be convulsed with lust.’”
(ST II-II, q. 10, a. 11)
The historian Vincent Dever concisely summarized Aquinas’ thoughts on this:
illinoismedieval.org/ems/VOL13/13ch4.html
While civil law does forbid certain vicious acts such as murder and theft, and requires certain acts of virtue such as caring for one’s children and paying one’s debts, it cannot “forbid all vicious acts” nor can it prescribe “all acts of virtue.” Aside from the fact that it would supplant the need for eternal law, why cannot civil law be enacted to prohibit all vicious activities?
The goal of human law is the temporal tranquility of the state and not eternal salvation. Given this goal of temporal peace and order, Aquinas notes that the mandate of human law is to prohibit “whatever destroys social intercourse” and not to “prohibit everything contrary to virtue.” The main reason for civil law’s inability to prohibit all vice is that it cannot effect a full internal reform of an individual.
An individual in their personal moral life is wounded by original sin and can only be restored by God’s grace. Therefore the coercive and educating power of human law is inefficacious in this realm. Aquinas asserts, then, that human law cannot “exact perfect virtue from man, for such virtue belongs to few and cannot be found in so great a number of people as human law has to direct".
We prudentially judge a given situation and formulate appropriate legislation to address it, using our minds. This will change from decade-to-decade, with older legislation continually requiring review after the passage of time, as human understanding progresses and social conditions develop (
populorum progressio).
Since legislation mutates and develops continually - with fresh supreme court judgments overturning older precedents and every new parliament / congress, after an election, passing newer laws to update the existing statutebook, in accord with government policy and evolving social trends - I can't say I would see the merit in having a cache of 'immutable' positive law that is deemed so sacred that we are, basically, '
stuck' with it for the duration of an entire dispensation (a
thousand years is an awfully long time in human terms).
As it is, the Catholic Faith does not propose any such revealed positive law / legislation for society or international society.
However I would here make a distinction between the "law", so called (i.e. the principle of
the rule of law) and "legislation". The medieval Church helpfully distinguished between the pre-ordained natural law discoverable by conscience and reason, on the one hand, and the socially constructed positive law of monarchs.
This belief that there are fundamental, immutable legal principles “
higher than the will of the current government" or any legislation it may enact (because they arise from natural law), and which thus
limit the extent of governmental power, is very important to Catholic theology. This is what we mean by 'natural law'.
In America, to take one example, that particular society is 'safeguarded' in this way by the Constitution but more fundamentally, at least socially, by the Declaration of Independence (1777) which defines that certain 'rights' are inalienable because they derive from (as the text notes): "
the Laws of Nature and of Nature's God", these being: "
that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government".
Britain, and Commonwealth countries like New Zealand, are much less religious than the United States (which has a secular state with no established religion but a more religious society than either of ours) but they nevertheless still have this idea (expressed in more secular language) in our legal tradition i.e.
"Man ... must necessarily be subject to the laws of his Creator.. This will of his Maker is called the law of nature.... This law of nature...is of course superior to any other.... No human laws are of any validity, if contrary to this: and such of them as are valid derive all their force...from this original." - Sir William Blackstone (Eminent English Jurist)
This is expressed in the modern age chiefly through human rights law, such as the
European Convention on Human Rights (1950) that all countries in Europe are subject to. That fundamental cornerstone of European law states the:
"...profound belief in those Fundamental Freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the Human Rights upon which they depend..."
This is but a modern, secular iteration of Catholic natural law: there are certain rights and norms that precede any positive legislation and circumscribe the power of governments, and against which standards they are held to account.
Limited government.
Here's a scholarly reference, from the Springer
Enclyclopedia of Medieval Philosophy, published 2011 and written by a scholar I haven't yet brought up, Professor John Kilcullen (yet another expert in politics and medieval studies):
Medieval Theories of Natural Rights - Macquarie University
From the 12th century onwards, medieval canon lawyers and, from the early 14th century, theologians and philosophers began to use ius to mean a right, and developed a theory of natural rights, the predecessor of modern theories of human rights. The main applications of this theory were in respect of property and government.
This is the ancestor of the modern idea of human rights, i.e. rights belonging permanently to any human being as such, independently of the law or customs of any community
Even in normal situations, the rights or powers of a ruler are limited by the rights of subjects, not only by the right to replace a tyrannical ruler but also by other "rights and liberties". The ruler's power is obviously limited by the natural rights of subjects.
Professor Quentin Skinner of Cambridge University, in his book
The Foundations of Modern Political Thought:
It was from the perfect law of liberty of the Gospels that Ockham developed his notions of the natural rights of individuals and his subsequent understanding of the origin and limits of all institutions with jurisdiction over men's lives
Or to quote William of Ockham (c. 1287 – 1347), medieval Franciscan canonist, directly:
"As St Ambrose said, the Christian religion deprives no one of his rights. Wherefore, the pope can deprive no one of his rights for a person has such rights only from God, by nature, or from another man, and by the same reason the pope cannot deprive anyone of his liberty which is given by God and by nature" (Ockham, De imperatorum et pontificum potestate, ed. Brampton, pp. 9-10.