The Catholic Church and the Rule of Law – Part I: Dr. John Lamont

+

JMJ

Is a Traditional Catholic who abandons the doctrine of the Catholic Church - are they truly worthy of the name of Catholic?

This is why it is important to understand Catholic Doctrine so we don't knowingly abandon it!

This is a lecture provided by Dr. Lamont that touches on the topic of obedience.

Obedience is one key to emerging from this crisis.

P^3

Source Part A: Society of St. Hugh of Cluny
Source Part B: Society of St. Hugh of Cluny


8 May 2014
The Catholic Church and the Rule of Law – Part I

By John Lamont

(Lecture given in New York on Friday, April 4, 2014)


The terrible crimes committed against minors by Catholic priests and religious have constituted a dreadful crisis for the Catholic Church over a period of many years. There is however one aspect of this crisis that has not attracted all the attention it should have. This is the failure of the rule of law in the Church with respect to these crimes. Until November 27, 1983, the law in force in the Latin Church was the 1917 Code of Canon Law. Canon 2359 §2 of this code decrees that ‘if clerics have committed an offense against the sixth commandment of the Decalogue with minors under sixteen years of age … they shall be suspended, declared infamous, deprived of every office, benefice, dignity, or position that they may hold, and in most grievous cases they shall be deposed.’ This canon declares that sexual abuse of minors must be punished by specific penalties.1 If it had been enforced, the grave crisis of sexual abuse in the Church would never have occurred, because the key to this crisis – the transferring of guilty priests to new locations where they could abuse again – was ruled out by the penalties imposed. But at some point after the Second World War, this canon ceased to be applied. Clerics who sexually abused minors were not canonically tried and punished, regardless of the severity of their crimes and the strength of the evidence against them. A number of proximate reasons have been offered for this state of affairs – aversion to legalism, lack of understanding of canon law on the part of the responsible authorities – but none of these proximate reasons could have obtained without an underlying indifference to the enforcement of the law.

This is not simply a matter of laws being broken, something that will always happen. It is rather a matter of there being no effort to stop them being broken on the part of authority; of no-one considering that the lack of enforcement of these laws is especially unusual, let alone a grave evil in itself; of there being no identification of the lack of enforcement of the laws as a principal reason for the flourishing of the evils they are designed to suppress; of there being no call for the enforcement of the law as the proper and indispensable path to the suppression of these evils. It would be possible to show that the same thing has happened in other areas of canon law, but that would take us too far afield; the gravity of this problem on its own suffices to establish that the rule of law does not exist in the Catholic Church.

This paper has the object of investigation how this extraordinary situation came into being. The essence of the explanation that will be proposed is that the rule of law came to be abandoned because of the adoption of a tyrannical understanding of authority and a slavish understanding of obedience in the Latin rite of the Catholic Church. A tyrannical understanding of authority considers the rightful exercise of authority to lie purely in the will and command of the superior, and the corresponding servile understanding of obedience sees obedience as consisting purely in conformity to the will of the superior, rather than in obedience to the law and the underlying common good that produces, defines, and limits the power of a ruler. These understandings have rendered the idea of the rule of law in the Church undesirable and indeed incomprehensible for the clerics who have the charge of ruling the Church, and to some extent for all Catholics.

An external cause influencing the acceptance of a tyrannical notion of authority was the growth of absolutist conceptions of the state in the late Middle Ages and the Renaissance, a growth itself fostered by the revival of Roman law, with its absolutist conception of the supreme ruler as himself above the law. The need for the Catholic Church to ally itself with Catholic absolutist states during the Reformation impeded any criticism of such a conception of authority, and the formation of the outlook of Catholics by these states fostered acceptance of this conception.

The most important causes were however ones that were internal to the Church. These can be divided into philosophical and practical causes. The philosophical causes were the development of notions of law, freedom, justice, and authority that had their roots in the Middle Ages, but that came to be treated as undoubted axioms by the theologians of the Counter-Reformation. These notions and their consequences have already been discussed by scholars, most notably by M.-M Labourdette, Michel Villey, and Servais Pinckaers.2 An outline of the findings of these scholars is necessary for our topic, although unavoidably inadequate. Their basic finding is that St. Thomas’s modified Aristotelian understanding of these notions was rejected, and replaced by quite different views that were largely of Scotist and nominalist origin. To understand these views and their shortcomings, we will proceed by describing them and contrasting them with St. Thomas’s positions.

It is somewhat paradoxical to say that the Scotist conception of freedom of the will as consisting in liberty of indifference was a fundamental basis for the development of a tyrannical notion of authority, but it is nonetheless true. In St. Thomas’s thought, a rational action, or a voluntary action – the two expressions mean the same thing – is an action that proceeds from knowledge of the good sought in the action. Since the good is the ultimate motivating attraction behind such action, it follows that there is something that the will wills of necessity. This is the good – the final cause – of the agent, a final cause that corresponds to the agent’s essential nature. All goods are sought for the sake of attaining the agent’s final end. Of course, not all goods that are sought do really offer this attainment. Except in the case of rational beings who are enjoying the Beatific Vision, it is possible for the practical intellect to be ultimately directed towards a good or goods that do not in fact realise the agent’s final end. However, even these goods are sought because the agent considers them to offer ultimate and complete satisfaction, and no good that does not have some relation to the actual final end of man can be sought voluntarily. So it is the case that the will wills something of necessity. It always wills to attain complete satisfaction; it always wills things that resemble to some extent what will actually satisfy; and if it enjoys the Beatific Vision, it always wills its real ultimate end, which is enjoyment of the vision of God.

Beginning with Duns Scotus, a different conception of freedom of the will came to be accepted by Catholic theologians. This is the conception of freedom as consisting in liberty of indifference. According to this conception, an act is free only if the agent has it in his power to either will or not will to do it. It follows from this account of freedom that there is nothing that the will wills of necessity. This means that obedience must necessarily involve some surrender of the will. Whenever a command is given, there must always be the possibility of the person commanded choosing to do otherwise; if this possibility is lacking, obedience to the command is not free, and thus is not really obedience.

The adoption of liberty of indifference led to a fundamental change in the understanding of law. St. Thomas’s claim that the good is willed necessarily is expressed by his description of the first principle of practical reason, which is ‘Do good and avoid evil’. The practical reason is the rational faculty that gives rise to voluntary actions, as opposed to the theoretical reason which produces the beliefs assented to by the intellect. The first principle of practical reason is thus the principle that directs all voluntary action whatsoever. Because it directs all action to pursue good and avoid evil, it expresses the fundamental orientation of the will towards the good, and indeed defines what it is to have a will on St. Thomas’s view. It does not suffice to direct all action towards objects that are entirely good, unless the agent has a direct and certain knowledge of the good for man, because such a direct and certain knowledge of the good is necessary to remove all attraction from options that are good in some respect but not good absolutely speaking. That is why the principle does not exclude the possibility of sin; only those who enjoy the Beatific Vision have the direct and certain knowledge of the good that can exclude wrongdoing. But it means that even sinful actions are not chosen because they are sinful, but for the sake of some good that is believed to characterise them.
However, if the will possesses liberty of indifference, St. Thomas’s account of the first principle of practical reason cannot be correct. Its directive to seek the ultimate good of man cannot be the principle for all voluntary action, because the will wills nothing of necessity, even the ultimate good of the agent. The meaning of this principle was therefore changed by the theologians of the Counter-Reformation. Instead of being the first principle for all voluntary action, it became the rule governing all moral action. As a result, the question of why we should obey this principle can arise. The answer can be found in Suarez; we should obey it because we are commanded to by our ultimate superior, God. Suarez did not go so as far as William of Ockham, who held that God’s command was the only feature that determined the goodness of good actions and the badness of bad actions. He thought that nature on its own determined what was good, but that this determination did not suffice for obligation. The fact that something is good provides a reason for doing it, in his view, but still leaves open the question ‘why do we have an obligation to do what is good?’ Suarez thought that the only answer to this question – the extra factor needed to transform mere goodness into obligation – was a divine command. Because only God’s authority creates an obligation to obey, all other authorities derive their right to obedience from a divine command to obey them. St. Thomas held that we obey both human and divine authority because it is good to do so. This is impossible in Suarez’s system.
We can see how in this scheme obligation, and hence obedience, are not ultimately rooted in the will of the individual obeying. Obedience cannot be an implementation of the fundamental orientation of the will towards happiness, as it is for St. Thomas in the case of a good person who obeys as an act of justice. It must be an external imposition from some other will. Since rights consist in an entitlement to act freely within some sphere, obedience and rights become mutually exclusive – as do obedience and freedom, contrary to the idea that God’s service is perfect freedom3. We are in a universe where the will and freedom of man and God are by nature mutually exclusive – what God gains, man must lose. Admittedly the natural good is not denied in this system, as it for Ockham, but the element of authority in this system – the element from which the duty of obedience emerges – is solely based on conformity to the will of the superior. Obedience thus essentially consists in submission to the will of another.

We can see the assumption of this fundamental antagonism between the divine and human wills in the famous ascetic counsel of St. John of the Cross:

• Strive always to prefer, not that which is easiest, but that which is most difficult;
• Not that which is most delectable, but that which is most unpleasing;
• Not that which gives most pleasure, but rather that which gives least;
• Not that which is restful, but that which is wearisome;
• Not that which is consolation, but rather that which is disconsolateness;
• Not that which is greatest, but that which is least;
• Not that which is loftiest and most precious, but that which is lowest and most despised;
• Not that which is a desire for anything, but that which is a desire for nothing;
• Strive to go about seeking not the best of temporal things, but the worst.4

Literally interpreted, this spiritual counsel can only be suitable for souls in hell, who of course will not avail themselves of it. That is because unless one’s will is completely fixed on evil to the exclusion of any good desires at all, as happens only with damned souls, on at least some occasions one will prefer doing what is good to doing what is bad. Under such circumstances, doing what is less pleasant rather than doing what is more pleasant will mean acting badly, and following St. John of the Cross’s counsel will lead one to sin. The reason why St. John of the Cross ignores this obvious failing in his position – and why this failing is scarcely ever given as an objection to his ascetic doctrine – is that he and his readers have taken for granted the fundamental opposition between the human and the divine will that is implied by liberty of indifference. His teaching shows the influence of this conception of the will on the Counter-Reformation outlook in general.

Connected with this transformation of the idea of obligation is the transformation of the understanding of rights that has been investigated by Michel Villey. For St. Thomas, the term ‘ius’ – later to be translated as ‘right’ – refers to a thing; to a certain distribution of material or other goods and evils, which conforms to the demands of justice. These demands are determined by the just proportion set out by Aristotle in book 5 of the Nicomachean Ethics, in which members of a society receive the rewards and punishments that are due to them. Human societies are natural entities with natural components – such as families, property, laws, religion – whose function is to cooperate in attaining their good. The contribution of members of society to the whole whether for good or for evil, a contribution constituted by their place and activity in these natural structures, determines what is due to them. Justice is the virtue of rendering to everyone their due – goods, obligations, or punishments, as the case may be; and this due is a relation between persons and things, a relation that justice preserves or brings into being.

This understanding of justice fell afoul of William of Ockham’s nominalist metaphysics. Ockham held that only individual substances exist. In consequence he rejected the reality of relations, and the reality of entities that were not substances, but had substances as their components. The objective right of Aristotle and St. Thomas is kind of relation, and the human society that founds this objective right is a whole that is made up of substances but is not itself a substance, so objective right could not be accommodated in Ockham’s philosophy. In its place he introduced what Villey calls a subjective right. This is a monadic property of a single individual – a particular sphere of action in which a person is entitled to act just as he pleases without interference from anyone. It is a scope of action for the individual’s liberty of indifference. Although Ockham’s nominalism did not meet with complete acceptance, his understanding of subjective right eventually achieved a complete victory – at least in theory – over the notion of objective right. This meaning, which Villey terms ‘subjective right’, came to displace the older meaning of ‘ius’ as objective right. With this displacement came a fundamental redefinition of the understanding of justice. This virtue came at first partially and then completely to be understood as meaning the respect of the subjective rights of individuals. Your rights are the area within which your will can operate freely; a constraint on your range of choices, conversely, is a constraint on your rights. Suarez, who was the principal Catholic legal theorist of the Counter-Reformation, defined rights as subjective rights, and understood laws as limitations on these rights that are based on the commands of the legislator. Here we have reproduced in the sphere of law and justice the competition between two mutually exclusive wills, that of the superior and that of the subordinate, in which what is gained by the one is lost by the other. What has been contributed by the replacement of objective right by subjective right is the elimination of the competing understanding of justice as based on desert, and distinct from the command of a superior.

The Counter-Reformation understandings of will, freedom, authority, and law thus both permitted and fostered the emergence of a tyrannical notion of authority and a slavish notion of obedience, whereas St. Thomas’s understanding of these things firmly excluded them.

However, in order for the tendencies of these philosophical positions to have a deep effect on the Church, they needed to be embodied in practice. This embodiment took place in the conception of obedience that came to be adopted by the Jesuits, and in the methods by which this conception of obedience came to be inculcated and enforced. The source and best expression of this conception is to be found in the writings of St. Ignatius Loyola, particularly in the Constitutions of the Society and in his letter on obedience written to the Jesuits of Portugal in 1553.

Its key elements are the following:

1. The claim that the commands of the superior have the force of divine commands, and should be treated as divine commands – provided, of course, that obeying them would not be manifestly sinful; this qualification should always be understood as applying to the Jesuit conception of obedience. St. Ignatius asserted: ‘The superior is to be obeyed not because he is prudent, or good, or qualified by any other gift of God, but because he holds the place and the authority of God, as Eternal Truth has said: He who hears you, hears me; and he who rejects you, rejects me [Luke 10:16].’5 ‘In all the things into which obedience can with charity be extended, we should be ready to receive its command just as if it were coming from Christ our Saviour, since we are practicing the obedience to one in His place and because of love and reverence for Him.’ (Constitutions, part VI, ch. 1).6 This position seems to have received general acceptance in part because of acceptance of the fallacious inference from the premise that God commands us to obey the orders of our superiors, to the conclusion that the orders of our superiors are commandments of God.
2. The claim that the mere execution of the order of a superior is the lowest degree of obedience, and does not merit the name of obedience or constitute an exercise of the virtue of obedience.
3. The claim that in order to merit the name of virtue, an exercise of obedience should attain the second level of obedience, which consists in not only doing what the superior orders, but conforming one’s will to that of the superior, so that one not only will to obey an order, but wills that that particular order should have been given – simply because the superior willed it.
4. The claim that the third and highest degree of obedience consists in conforming not only one’s will but one’s intellect to the order of the superior, so that one not only wills that an order should have been given, but actually believes that the order was the right order to give – simply because the superior (it is supposed) believes this himself. “But he who aims at making an entire and perfect oblation of himself, in addition to his will, must offer his understanding, which is a further and the highest degree of obedience. He must not only will, but he must think the same as the superior, submitting his own judgment to that of the superior, so far as a devout will can bend the understanding.” (Letter on Obedience)
5. The claim that in the highest and thus most meritorious degree of obedience, the follower has no more will of his own in obeying than an inanimate object. ‘Everyone of those who live under obedience ought to allow himself to be carried and directed by Divine Providence through the agency of the superior as if he were a lifeless body which allows itself to be carried to any place and to be treated in any manner desired, or as if he were an old man’s staff which serves in any place and in any manner whatsoever in which the holder wishes to use it.’7 (Constitutions part VI ch. 1).
6. The claim that the sacrifice of will and intellect involved in this form of obedience is the highest form of sacrifice possible, because it offers to God the highest human faculties, viz. the intellect and the will.

‘Now because this disposition of will in man is of so great worth, so also is the offering of it, when by obedience it is offered to his Creator and Lord. … there are, however, many instances where the evidence of the known truth is not coercive and it can, with the help of the will, favour one side or the other. When this happens every truly obedient man should conform his thought to the thought of the superior.

And this is certain, since obedience is a holocaust in which the whole man without the slightest reserve is offered in the fire of charity to his Creator and Lord through the hands of His ministers. And since it is a complete surrender of himself by which a man dispossesses himself to be possessed and governed by Divine Providence through his superiors, it cannot be held that obedience consists merely in the execution, by carrying the command into effect and in the will’s acquiescence, but also in the judgment, which must approve the superior’s command, insofar, as has been said, as it can, through the energy of the will bring itself to this.’ (St. Ignatius, Letter on Obedience.)

This claim is presented as following the tradition of the Church on obedience. The innovation of St. Ignatius can however be seen by contrasting his position with that of St. Gregory the Great. In his Moralia, St. Gregory states that the merit of obedience lies in sacrificing one’s proud self-will.8 St. Thomas makes a similar point by describing the merit of obedience as consisting in sacrificing one’s proper will, i.e. one’s will as functioning independently of God.9 St. Ignatius however makes it clear that it is not self-will, but the entire human faculty of will itself, that is to be sacrificed; one’s self-will could not be described as ‘of great worth’. This is a sacrifice in the sense of an abandonment and a destruction, since it involves handing over one’s will to the will of another human being. Underlying this claim, of course, is the presumption of liberty of indifference, according to which one’s will necessarily functions independently of God. This presumption is something that St. Ignatius would have learned from his studies as a basic axiom. His conception of the sacrifice of the will was simply an application of this philosophical position to the religious life.

The character of the Society of Jesus was itself an important influence on the Jesuit understanding of obedience. Monastic obedience had always been strict, and examples of monastic obedience were plentifully used by writers to illustrate the virtue of obedience as the Jesuits conceived of it. But these illustrations ignored the fact that monastic communities were governed by detailed Rules – those of St. Basil, St. Augustine, or St. Benedict. The authority of a monastic superior was limited by the rule of the community, and had the purpose of bringing about the following of the rule. It was obedience to the rule, not to the superior as such, that was the fundamental tool of monastic perfection, and the object of monastic obedience. But the Society of Jesus had no rule. The decisions of the Jesuit superior were explicitly intended to take the place of the rule of life of the monastic community as the object of obedience and the path for spiritual perfection for the Jesuit. The primacy of law that was characteristic of monastic obedience was thus lost.

An obvious objection to the Jesuit conception of obedience was soon raised. It was remarked that acceptance of blind obedience would mean that heretical priests and bishops could easily lead their people into rejection of the faith. St. Robert Bellarmine’s response to this objection was that it was not a real possibility, because the preaching of heresy by bishops or priests would promptly be suppressed by the higher authority of the Holy See. This response of course required the pope himself to be incapable of heresy. The theory that the pope was not only infallible in his formal definitions of faith, but personally immune from heresy in virtue of his office, was accordingly first proposed in the Counter-Reformation, and argued for by Bellarmine. The theory was incompatible with the facts and the previous tradition of the Church – one pope, Honorius, had actually been condemned as a heretic by an ecumenical council – but it was required by the Jesuit conception of obedience, and soon came to be widely accepted. This conception of obedience was thus at the root of later ultramontane excesses, which appealed to the belief that the pope could not err in matters of faith – a superhuman privilege that was easily extended to the belief that the pope could not err in any way at all.

Part II will be linked here.