Rendering Unto Caesar - Catholicism, Politics, Law and Democracy

Introduction

Cherie Booth QC

As a bencher of Lincoln's Inn, may I welcome you all to the Old Hall of Lincoln's Inn and to the Discussion sponsored by The Tablet of "Rendering Unto Caesar: Catholicism, politics, law and Democracy".

Lincoln's Inn Old Hall is a fitting place for such a discussion to take place as it is in this very hall that Saint Thomas More spent his working life as a lawyer. And of course he paid the ultimate price for his refusal to render unto Caesar that which is God's.

But the topic for debate tonight is not merely historical. On the contrary, it lies at the heart of the modern debate about the role of the individual in a democracy committed to human rights. Last year this issue came to the fore both in Europe, with the furore over the appointment - or as it turned out the non-appointment - of Rocco Buttiglione to the post of EU Justice Security and Asylum commissioner, and in the United States' presidential election, with the pronouncements of some Catholic Bishops that they would refuse Communion to Catholic politicians who had shown support for abortion and same-sex relationships. And even here in the UK, some people seemed to think it could be problematic that our new Secretary of State of Education, Ruth Kelly, is not only the youngest ever woman Cabinet member but a devout Catholic. But it is not only about politicians, it is also about judges. In today's secular world more and more of the moral dilemmas of our time are finding their way into our courts and the judges are being asked to pronounce on life and death issues such as in the recent case of Burke v General Medical Council, in which the High Court upheld the right of a patient with a degenerative disease to compel doctors to provide him with artificial nutrition and hydration, or the cases of the two severely disabled babies Charlotte Wyatt and Luke Winston Jones.

So what then are the obligations of Catholic law-makers, whether legislators or judges in a democracy? Do they in fact differ at all from the obligations of their fellow non- Catholics? Should there even be a 'Catholic line' on the issues of the day? When does the duty of the Church to speak out on moral issues become an illegitimate interference with the democratic process? What are the obligations of Catholics in public life when their legal obligations conflict with the teachings of the Church?

Tonight we hope to debate these issues and to seek to find common ground to solve what may seem to be irreconcilable differences. All our speakers tonight are Catholics who have been active in different ways in civil society. We are employing a form of discussion, the disputatio, in which we will first hear Aidan O'Neill QC put the case for respect by the Church for the disciplines of a society which sees its strength in respect for democracy and pluralism and tolerance. Then Dr Thomas D'Andrea will respond with an exposition of the Church's moral imperative to speak out for the truth that has been revealed to it, and the obligation of those who belong to the Church to live their lives in accordance with the teachings of the Church. Then Professor Conor Gearty will try and find common ground between the two views before I throw open the discussion to the floor. At the end of the evening I will invite Timothy Radcliffe OP is a member of the community at Blackfriars, Oxford, and was Master of the Order of Preachers from 1992 to 2001, to sum up our discussions.

Introduction - Conor Gearty - Thomas D'Andrea - Aidan O'Neill - Timothy Radcliffe OP

Catholics in Public Life

Timothy Radcliffe OP, Catholics in Public Life, Lincoln's Inn, 13 January 2005

Introduction
What was most important tonight was that a group of Catholics gathered to debate an issue that touches our faith. It is very rare in the Church that we engage in open debate, with the full participation of the laity, under the presidency of a lay person. I hope that this may be just the first of a series of such debates.

But it matters not just that we debate but how we debate. In British society there are endless debates, in Parliament, in the Law courts, in the media. But usually debating is competitive. It is about winning, wiping the floor with your opponent, or promoting your views in the market place of ideas. What need is another way of arguing, in which hard thinking leads one towards a larger truth. We need forms of debate that are not about which side wins, but about how the truth wins.

We started with two opposing positions, brilliantly presented by Aidan and Tom. Conor then took the next step of identifying what they had in common, their shared opinions. Then we all dived in with our own views. But I believe that the real challenge, which we have just begun to face tonight, is how to argue so as to move towards agreement.

The key to this is that one must always take one's opponents objections seriously. Thomas Aquinas, and as a Dominican I must refer to him at least once, responded to several thousand objections against his views. And only once does he ever refer to his opponents' position as absurd. One's opponents' views may be wrong and irrational, but there is always some bit of truth in them, needing to be accepted. They are almost never simply absurd or ludicrous. This is not finding truth in the middle, a sort of Catholic Third Way! It is letting oneself be challenged by the truth of one's opponents' position.

I would like to conclude by glancing at just a couple of issues very briefly, and suggesting how the debate between Aidan and Tom might move us forward, rather than remain bogged down in disagreement.

A big issue this evening was whether bishops can tell politicians how to vote?
Aidan and Tom clearly have different views here. If I may be allowed to over simply - if I do not then the Chair will sit on me, which would be an unnatural arrangement - Aidan believes that (7.8) that all that bishops may do is to 'articulate the principles of ethics and justice.' And that it would be illicit for the Church to 'direct those holding office within civil society how to do their jobs.' 'All that the church can properly expect from its members participating in the public life of the polity is that they will carry out their duties in accordance with their conscience and with the civil law.' (7.9).

Tom's position is stronger, in that he maintains that it is the role of the bishops to form the consciences of the faithful. They must be told clearly what is the teaching of the Church, and it follows that if they then disregard teaching which has the full authority of the Magisterium behind it, then they must suffer the consequences for their membership of the Church, including possible excommunication. This is not forcing the politicians to adopt a position, since they are free to remain in the Church or to leave it as they wish.

The crucial issue here is what it means to follow one's conscience. Aidan stresses the freedom of politicians to follow their consciences, free of pressure from the hierarchy. For Tom, a properly formed conscience must necessarily mean submission to the teaching of the Church, except in the most grave circumstances. This is the crux.

I would suggest that the way beyond this impasse might be to say two things:
Tom is surely correct in arguing that for a Catholic in public life, surely more is necessary than just listening to the Church's teaching as one voice among others - One reads the Spectator, and the Tablet and one just adds Church documents to the reading list. As Catholics we necessarily recognize the Church's authority to teach.
But, to recognize Aidan's reservations, the Church does not form consciences by stating her teachings and threatening people with penalties.

The Vatican Document, 'Doctrinal Notes on some questions regarding the participation of Catholics in political Life' quotes Paul VI who bases freedom of conscience on 'the dignity of the human person, which demand that he not be subjected to external limitations which tend to constrain the conscience in its search for the true religion or in adhering to it.' Freedom of conscience respects our dignity as rational beings, who search for the truth. The Church will only form consciences if we are seen to listen to the arguments against our teaching, to be attentive to what human beings actually live, to be in touch with people's lives. The Church cannot form consciences of rational and free people by wagging a finger and threatening excommunication. I would agree with Tom that, in extremis, of course the Church can excommunicate, for example if Hitler presented himself for communion.

This is the sort of position, which needs a lot more elaboration, which might get one beyond the temptation of Aidan's position which, if my learned friend will forgive me, is towards an over-reduction of the role of Church teaching. It would also get us beyond the temptation of Tom's position, and I am sure that you will also forgive me, which is towards authoritarianism.

Taking part in the debate.
Aidan concluded with a passionate appeal for the Church to take part in the debates of our society with openness and humility. With reference to the Church's position on homosexual unions, he says that since it claims to be based on reason, then, I quote, 'it is not, and cannot be, the last word on the subject.' Indeed he links the ongoing debate to the fact that we live in a democracy.

Tom agrees that Catholics, and indeed bishops, have a right to engage in the discussion, because we are citizens and so have the same right to express our opinion as other citizens. My impression is that he is less optimistic that as Catholics we are likely to learn from that discussion. We have the hierarchy to teach us.

Once again, I would like to tentatively point to a way beyond the disagreement. With Tom, I would agree that the Church does on some rare occasions teach moral positions, such as on abortion, which are firmly attained. Their truth is not going to be put in question by any future discussion, anymore than we shall one day go back on our belief in the Resurrection of Jesus. Some truths are non-negotiable.

But with Aidan, we must surely also say that the Church engages in debate not merely to teach but also so as to learn. The Church must humbly listen to the reasoning and the experience of human beings of other faiths and none. The Church teaches the inalienable dignity of the human person. But the Church also needs to learn what this means. In the nineteenth century the Church was slow to learn that human dignity means a respect for democracy. In the twentieth century, we have needed women, and often women who were not Christian, to teach us about the dignity of women. We still have a lot of learn there. Who knows what the Church will have to learn in the twenty first century? Maybe something more about the dignity of homosexuals?

Introduction - Conor Gearty - Thomas D'Andrea - Aidan O'Neill - Timothy Radcliffe OP

Remarks on the Catholic Conscience and Public Life

Thomas D'Andrea - Wolfson College, Cambridge

"[Many] cases of 'social' sin are the result of the accumulation and concentration of many personal sins. . . . It is a case of the very personal sins of those who cause or support evil or who exploit it; of those who are in a position to avoid, eliminate or at least limit social evils but who fail to do so out of laziness, fear, or the conspiracy of silence, through secret complicity or indifference; or, of those who take refuge in the supposed impossibility of changing the world, and also of those who sidestep the effort and sacrifice required, producing specious reasons of a higher order" (Pope John Paul II, On Reconciliation and Penance, para. 16).

"Scandal is anything said, done, or omitted which leads another to commit sin" (St. Pius X, Catechism of Christian Doctrine, 417)

Since it is Catholicism that we are primarily concerned with here, it might be appropriate to begin with a number of background considerations. I take it that among Catholics the following set of clustered propositions can be assumed true (since these propositions express fairly rudimentary tenets of the Catholic faith, I will for the most part forego citing or quoting the scriptural passages and authoritative church documents which warrant them). I take it also that there is nothing in these propositions that any acceptance-worthy theory of democratic politics would have political grounds upon which to object.

So where exactly is the conflict today between the res Dei and the res Caesaris --assuming, as is overwhelmingly the case in the developed world today, that Caesar is democratically elected? Why all the fuss? Bishops, the Holy Father, the various Vatican congregations do their job, democratically elected politicians do theirs. Sometimes the civil and the ecclesiastical authorities agree on matters of law and public policy, sometimes they don't. Referenda are also held, the people speak, their voice, right or wrong, becomes law. The democratic process moves today this way and tomorrow that. As long as each authority respects its legitimate sphere there would seem to be ample space for fairly conducted reasoned exchange--and disagreement-precisely in the realm of mores, the realm, so to speak, of their overlapping jurisdiction--and little space for outright violent conflict or coercion.

Of course, the past history of the relationship between the Church hierarchy and political authorities has often been highly conflictual and violent, almost invariably so when either the civil authority or the ecclesiastical authority has sought to act ultra vires and outside its legitimate respective competence and remit. There have been numerous cases of abuse of power and transgression of lawful authority on both sides. But the Church for her part has progressed quite a bit. No more do members of the hierarchy or clergy seek or claim any right of political rule (the error of clericalism): authoritative magisterial teaching now denies them this and specifies that while members of the clergy and those in religious life retain citizen's rights, direct political action is reserved to the laity (see, for instance, the Congregation for the Clergy, Directory for the Ministry and Life of Priests, 31 March 1994, para. 33).

So why can't members of the hierarchy exercise their citizen's rights and speak out to all their fellow citizens against perceived moral, social, and political abuses? They can and they do, and a vivid recent case in point are those interventions of various U.S. Catholic bishops on the human rights of the unborn and the responsibilities of Catholic and of all candidates for political office toward the unborn. Other examples in the recent past abound-interventions by the bishops on the licitness of the death penalty, or on the economic rights of migrant workers, or the conditions state-sponsored coercive action must meet in order to be considered just. All of these fit a similar pattern of what should be a mutually acceptable form of interaction between those purporting to speak for God and those for Caesar; for purposes of brevity now, however, I will focus my remarks on ecclesiastical interventions on the question of abortion, but what applies here applies mutatis mutandis to other moral issues.

To consider the matter schematically: suppose Bishop A, whose diocese is in a pluralistic political society, writes a pastoral letter to the faithful of his diocese condemning as a grave crime against humanity not only abortion on demand but abortion simpliciter. In this letter he urges those entrusted to his pastoral guidance and care to exercise their civic rights and responsibilities vis a vis the electoral and legislative processes and to seek by established, procedurally democratic means to outlaw abortion. He also advises those Catholics standing for elected office in his diocese that they must steadfastly aim to abolish laws permitting the crime of abortion, or, within the limit of the practical best, seek progressively to tighten the restrictions on abortion aimed at its eventual abolition. He notifies them that in failing to do so they will as a matter of soteriological fact be separating themselves from full communion with Christ and the Church for committing the mortal sin of formal cooperation in an intrinsic evil, and that they will be the subject, if they fail publicly to repent of this grave, persistent public sin, of ecclesiastical sanctions culminating, if necessary, in declared excommunication.

Suppose Bishop A also writes an open letter to a secular newspaper, such as The New York Times, for instance, urging all his fellow citizens to defend the right to life of the unborn by outlawing abortion and by giving the abortion question first priority in their decision as to which candidate to vote into office. In this open letter, he quotes the words Blessed Mother Teresa of Calcutta addressed to President William Jefferson Clinton and Mrs. Clinton at a prayer breakfast organized by the then President in Washington a number of years ago-that no society which fails to protect its weakest and most innocent and defenceless, and which moreover sanctions a human or even a civil "right" to kill them, can call itself just.

Now in either of these epistolary actions has Bishop A in any sense transgressed either, a) in exercising his ordained office within the Catholic Church as a descendant of the apostles and a shepherd of the flock, or, b) in his rights and duties as a citizen of a non-sectarian democratic polity? Consider two objections that he has:

Objection 1: In these public actions Bishop A is, consciously or unconsciously, attempting to turn the democratic polity of which he is a member into an ecclesiocracy.
This is undesirable for two reasons. The Catholic hierarchy has often spoken well of democracy because of its valorization of human equality and the rights and dignity of the person, and yet in a democracy the voice of the people and not of some externally imposed authority is meant to reign supreme. There can be no popular sovereignty if the bishop seeks to impose his views concerning the right and the good on the citizenry. Secondly, the Catholic hierarchy has also, by way of a development of its doctrine and a process of internal reform, spoken of the autonomy of the temporal realm and promoted the principle of subsidiarity. And yet in telling citizens how they must vote members of the Church hierarchy are violating this autonomy. They are violating, indeed, citizens' rights of conscience to vote as they see best, and they are violating those constitutional guarantees regarding the separation of church and state which are characteristic of non-sectarian democracies.

Now no sooner, I think, has this first objection been formulated that anyone can see how exceedingly flimsy it is: extraordinarily, it does get a more than occasional airing in elements of the secular and even the Catholic press and in political circles in Washington, Westminster, Paris, and Brussels, to name but a few.

Exactly how is the bishop seeking unjustly or by any untoward means whatsoever to impose his views on the demos? He is simply exercising his own right to free speech in the public square: the same right enjoyed by politicians, pundits, academics, ordinary citizens, and even journalists. He is not attempting himself to write the laws, or to seize political office, both of which are denied him anyway by the law of his church (see for instance Canons 285, no 3 and 287, no. 2 in the Code of Canon Law), nor is he seeking to dictate fine points of application in social policy. He is issuing moral reminders regarding matters that he thinks his fellow citizens typically already know in their heart of hearts; and, he is engaging in moral exhortation. His, from the standpoint of those in the demos outside of his church, is but another take-it-or-leave-it opinion being expressed in the public square and aimed at informing the public conscience and shaping the common mind. And it is the hallmark of any just and well-ordered democratic polity to defend his right to express that opinion-unless, that is, ecclesiastics of whatever church or religion, are somehow less equal citizens than journalists, artists, pop stars, politicians, academics, and the like.

The charge that the bishop in writing these two letters is attempting a kind of Catholic equivalent of shari'a is but a ludicrous attempt at scaremongering by those who are fearful that they might lose the reasoned argument about the morality of abortion in the public square. The bishop is in no sense seeking to penalize civilly some exclusively religious offense, such as heresy or apostasy or breaking the Eucharistic fast. Abortion is after all, and on any account, at least a human rights issue. And, unlike some of the spurious human rights that lawyers and jurists have been pulling out of thin air lately, it has nothing of arbitrariness or narrow ideological interest about it. Any tenable human rights theory is going to have to admit a hierarchy among fundamental human rights, and it is as plain as day that the most fundamental human right is the right to live (even Senator Ted Kennedy of Massachusetts saw this and stated it publicly in his early days in elected office). This is because it is trivially true that if one is denied the right to life one cannot be the bearer of any other human rights, save of course that very limited number of rights that might be regarded as pertaining to the deceased in absentia. It is, moreover, an incontrovertible scientific fact now, an incontestable finding of genetic embryology, that human life begins at conception with the successful fusing of the two gamete cells into one new zygote cell, a cell thenceforth fully genetically constituted and determined as human and capable of internally directed processes of organic differentiation, organization, and teleological development.

A second objection, then, might then be made to Bishop A's actions and along the following lines:

Objection 2: In condemning abortion legislation and candidates who promote or support such legislation, Bishop A is at least telling the Catholic laity how they must vote--telling them, that is, which candidate and or which political party they must elect. This is ecclesiocracy by other and indirect means. Furthermore, with his threat of ecclesiastical sanctions against the faithful, whether they form part of the electorate or are candidates for political office, Bishop A is seeking to override the primacy, the sanctity, of the consciences of Catholic citizens. He is, moreover, requiring elected Catholic public servants to cheat with respect to the democratic process and its rule of law--or at least to ignore the manifest wishes of their electorate.

To this one can only respond, nonsense. With respect to the recent U.S. election, no bishop, not one (and I have read all of the pastoral letters U.S. bishops issued on the subject), told his flock which specific candidate or party he must vote for. In no sense then did they -more scaremongering-violate the tax exempt status of their particular church by using it to promote a given political candidate: a practice forbidden by the U.S. Internal Revenue Service tax code, section 501C3 which states the requirements for not-for-profit corporate status. What they did, what Bishop A in our hypothetical case did, besides issuing a series of negative injunctions was to remind the Catholic faithful entrusted to their pastoral guidance and care of their natural moral (and therefore also Christian) duty both to act for the common good in exercising their vote and to vote remembering that human rights have a hierarchy, with the human right to life the first and sine qua non right among other rights and the first and most fundamental value among fundamental human values. As was specifically noted in a number of the pastoral letters, the protection of the human right to life overwhelmingly trumps all other moral and policy considerations in the U.S. today. After all, by what conceivable calculus could complex and difficult arguments about right government redistributive policies, or trade policy, or immigration policy, or about how best to protect the environment, or about whether the war against the corrupt and violent regime of Sadaam Hussein was just or not--debates in which often even specialists of sound conscience and good will can reasonably disagree-outweigh in importance the protection of human life in the womb? And in what way could a candidate's perceived favourable views on these topics or other topics compensate for a his or her indifference toward, or sanctioning of, the large-scale massacre of human innocents, the hope of our future, that is daily taking place before us?

Since the specious invention of a constitutional right to abortion as a function of a right to privacy in the U.S. Supreme Court decision Roe v. Wade in 1973, there have been 43 million, repeat 43 million, abortions in the U.S. alone! This moral catastrophe dwarfs in comparison even the terrible crimes of racism and apartheid, or of class injustice, and even the appalling crime of slavery, including, in its current form, drug and prostitution slavery. And how many Britons today would be willing today to overlook the declared racist views of a candidate for office, say a member of the BNP, in virtue of his other credentials and commitments? Abortion is the dirty big secret of many so-called advanced democratic and rights-conscious civilizations today. How can racism be beyond the pale and abortion not?

What though of Bishop A's respect for the sanctity or primacy of conscience of his flock? "Sanctity of conscience" is a misnomer and to my knowledge a recent and dubious linguistic innovation with respect to the Catholic tradition. The term "sanctity" in Catholic parlance standardly denotes holiness, and there is nothing holy about a culpably erroneous conscience. A better expression would be the sacredness of conscience, since this expresses the fact that no one but God alone has complete sovereignty over that conscience. As to the "primacy of conscience" this expression needs careful qualification: conscience is but an act of human practical reasoning bearing on the good to be done-evil to be avoided in the particulars of the here and now. One must do one's practical best in moral situations: one must follow finally, having heeded one's innate capacity to tell basic right from wrong, having run through relevant available moral maxims from past experience or instruction, having consulted various moral authorities or trustworthy confidantes, one's own end of the day judgment about what ought to be done in the light of all that in the here and now. Conscience has primacy because human agents are free and therefore responsible agents and because their freedom-responsibility is always situated in a sea of particulars concerning with respect to which they typically have the best vantage point. But conscience does not invent the truth about how one should act: if properly functioning it discovers the truth. Conscience is not a source but a means of detecting the truth about right action. Only God's intellect is, as Aquinas noted, an unmeasured measure (mensurans immensurata); the human practical and theoretical intelligence is a measured measure (a mensurans mensurata).

In any event, as the Venerable John Henry Newman noted in his famous Letter to the Duke of Norfolk, conflicts between the individual Catholic conscience, properly understood, and the lawful exercise of magisterial authority are impossible at the level of abstract doctrine or with respect to the magisterial condemnation of particular erroneous beliefs and practices. This is because, as Newman notes,
conscience is not a judgment upon any speculative truth, any abstract doctrine, but bears immediately on conduct, on something to be done or not to be done. "Conscience," says St. Thomas, 'is the practical judgement or dictate of reason, by which we judge what hic et nunc is to be done as being good, or to be avoided as evil." Hence conscience cannot come into direct collision with the Church's or Pope's infallibility; which is engaged in general propositions, and in the condemnation of particular and given errors (Letter, #5, 255).

Bishop A's condemnation of the error that one can have a human or even a civil right to engage in infanticide is but a notification by an act of his teaching authority of an infallible teaching in morals of the ordinary universal magisterium. He is so informing the consciences of his faithful about a matter of divine revelation. Once informed, only a now culpably erroneous Catholic conscience could see the matter otherwise-this would be what Newman refers to in his Letter as conscience perversely misconstrued, conscience regarded as " the right of thinking, speaking, writing, and acting, according to . . . [one's] judgment or their humour, without any thought of God at all . . . the right of self will" (Letter, 250).

But what of the bishop's judgment that voting for a pro-"abortion as a civil right" candidate because he is such or standing and holding office as a pro-"abortion as a civil right" candidate is tantamount to formal cooperation in the intrinsic evil of abortion: a mortal sin which once committed ipso facto bars a Catholic from receiving Holy Communion worthily, and a sin which if stubbornly persisted in publicly merits the active denial of holy communion to the individual in question by the minister of the holy Eucharist (canon 915)--or in the case of a public defence of a spurious "right" to murder, merits as heresy automatic excommunication with its attendant and further juridical penalties and public ecclesiastical censure culminating in public notification of excommunication (canons 751, 1364, and 1331 )? Is that not a particular prudential judgment and so one from which the individual Catholic conscience may in good faith dissent. Before answering that question it is worth heeding again the words of the Venerable J.H Newman on the subject-words which echo, really, the antecedent received Catholic tradition on the matter. Newman notes in his Letter to the Duke of Norfolk that legitimate grounds for such dissent should be very rare indeed. He states:

If in a particular case it is to be taken as a sacred and sovereign monitor, its dictate, in order to prevail against the voice of the Pope, must follow upon {258} serious thought, prayer, and all available means of arriving at a right judgment on the matter in question. And further, obedience to the Pope is what is called "in possession;" that is, the onus probandi of establishing a case against him lies, as in all cases of exception, on the side of conscience. Unless a man is able to say to himself, as in the Presence of God, that he must not, and dare not, act upon the Papal injunction, he is bound to obey it, and would commit a great sin in disobeying it. Prima facie it is his bounden duty, even from a sentiment of loyalty, to believe the Pope right and to act accordingly. He must vanquish that mean, ungenerous, selfish, vulgar spirit of his nature, which, at the very first rumour of a command, places itself in opposition to the Superior who gives it, asks itself whether he is not exceeding his right, and rejoices, in a moral and practical matter to commence with scepticism. He must have no wilful determination to exercise a right of thinking, saying, doing just what he pleases, the question of truth and falsehood, right and wrong, the duty if possible of obedience, the love of speaking as his Head speaks, and of standing in all cases on his Head's side, being simply discarded. If this necessary rule were observed, collisions between the Pope's authority and the authority of conscience would be very rare (Letter, # 5, 257-8).

So is there then, as according to Newman's words above, the possibility of licit dissent from the magisterial teaching that publicly approving of, and or defending, and or voting for, and or signing into law, a "civil right to abortion" constitutes the mortal sin of formal cooperation in a grave intrinsic evil? There is not, one who maintains such a right is actually guilty of at least one of two related heretical beliefs: a) that abortion is not an intrinsic evil (i.e. an act which can never under any conceivable or possible circumstances be morally choiceworthy or permissible), and b) that one can have a civil right to homicide (e.g. non-Catholics could be inculpably ignorant of the intrinsic evil of abortion as murder, and this ignorance should be honoured by the civil law). Both a) and b) are heretical beliefs meriting ecclesiastical censure: a) because it directly contradicts an infallible teaching of the universal ordinary magisterium on a matter of divinely revealed morality, namely the inviolability of innocent human life from the moment of conception according to the 5th commandment (see, for instance, Evangelium Vitae, para.60); and, b) because it maintains that human beings in standard conditions could be blameless in their failure to grasp a primary precept of the natural law (in this case the precept concerning the inviolability of all innocent human life), and this contradicts the infallible attestation of the universal ordinary magisterium to the natural knowability of the primary precepts of the natural law as something divinely revealed (as per, for example, Rom. 2: 14 ff; see L. Ott, Fundamentals of Catholic Dogma, Tan Books: Il, 1974, pp. 233-34, and Denz. 793, 815 ).

A few words are in order, though, about the action description "cooperation in evil". In brief, this refers in one sense to behavior whereby one acting as an uncoerced cooperating agent, though not as sole direct perpetrator, wills some intrinsically immoral object (e.g. the murder of an innocent, the publication of slanderous information): here we have a case of so-called formal cooperation in evil. Here one acts as a partial accomplice in evil, as the case of a nurse directly assisting in an abortion procedure. One's cooperation with evil is also culpable where one does not will the intrinsically immoral object of the act, but nonetheless voluntarily participates in a more or less proximate or close-up way in the intrinsically evil act itself (e.g. working as a receptionist in an abortion clinic or as an accountant in a brothel): this is proximate material cooperation in evil and may also be gravely immoral and sinful. In either of these cases, an agent's cooperation in an evil may be fully manifest in the external forum; in the case of arguing for, defending, signing into law a civil right to abortion, it certainly is. If this formal cooperation in the grave evil of abortion engaged in persistently by a Catholic after he or she is reminded of its seriousness by an ecclesiastical authority, it becomes censurable behavior and, as an item of belief, heresy. No prudential judgment is being made by the ecclesiastical authority applying or giving notification of this censure, no educated guesswork is involved: the relevant Church authority is merely bringing a particular instance under an abstract and universal type.

The civil authority, it should be noted, has no interests at stake in such matters. Games have constitutive rules, so do institutions. The Church as any voluntary association is free to set its own rules for membership as long as these violate no established fundamental civil rights. And individuals who do not like these rules have every freedom, have the human right honoured by the Church, to depart and to reject authoritative church teaching in their action, thought, and speech. But they have no legal entitlement once departed to claim membership. The juridical process of excommunication permits the Church to preserve her self-defined identity: for instance, in protects the holy Eucharist from profanation by those not in appropriate communion with the Church; it protects non-gainsayable Church teaching from being treated otherwise by members and so distorted as to its true nature--or simply trivialized; it also permits the Church to administer penal and medicinal sanctions to her members for their own good--their own good as "always invited to join, free to depart" members of the Church. So neither a just polity nor any Catholics formerly in juridical communion with the Church have any civil or human rights grounds to object to ecclesiastical excommunication per se.

What then of our democratically elected or duly appointed public servant who identifies himself publicly as a Catholic and who, as all Catholics must, thinks he should not check his Catholic convictions in the cloak room of his workplace, but neither does he think he should unfairly impose them on his electorate, especially since many, perhaps the majority of that electorate, have not, or not yet, received the supernatural gift of the Catholic faith? Such a candidate for office could permissibly state that he is personally opposed to abortion but . . . for example, is not a dictator and cannot violently impose his view on the populace. It is true that it could be morally permissible for him to soft-peddle his anti-abortion stance for prudential reasons. Once elected, though, he could never do evil that good might arise-he could never sign permissive abortion legislation or defend a civil right to abortion (formal cooperation again). His stance could be one of tolerating but in no way furthering, even pro tempore, an existing and difficult-to-remove evil. As an example of how such a stratagem could work, it is claimed, for instance, of Lyndon Johnson that he took a "personally in favor, but unwilling to impose his judgment" stance with respect to the civil rights movement when he was a low-level elected public official in Texas. Later, when he had ascended to the White House, he used the presidency to spearhead the civil rights movement. But the details of this case would have to be examined further to see if he acted in a morally permissible way throughout.

A distinction is in order here between public servants who are lawmakers and those who are administrators of the law and who can but interpret law according to established canons of interpretation, but cannot alter it. The former have a positive obligation to work to change intrinsically evil law, even if gradually: by tightening restrictions on it, by arguing against it publicly, even as they tolerate it, by voting for its repeal, and at the very least by recusing themselves as conscientious objectors from any remote material assistance of those laws. With administrators of the law (e.g. judges) the matter is otherwise; they are not typically empowered to make law: in a well-ordered democracy that power belongs to the people through their elected and directly accountable representatives. Administrators of the law are empowered to uphold and interpret it: in doing so they can, and in the case of a gravely immoral law, they must voice their dissent from the law as law, but they have no obligation to act ultra vires and to say the law of the land is not in fact the law of the land (this applied, as Rocco Buttiglione was aware, to his case as potential E.U Commissioner for Justice). Clearly no public servant can execute or cooperate in the execution of gravely unjust, intrinsically immoral civil laws as this would return us to formal cooperation and here again at least conscientious objection is required.

Returning to representative lawmakers, also relevant to their behavior is their responsibility to exercise discretionary leadership, a responsibility which has particularly broad scope for those occupying a parliamentary upper house. In many cases lawmakers may have good reasons to act contrary to a majority opinion of their constituency-reasons having to do with the their possessing superior information, or a broader political vision, or more seasoned political judgment, or a capacity to see through and resist mass ephemeral trends, or greater moral insight and understanding as to the constitutive goods of the society at stake in a given piece of legislation or policy. And they may and typically should act in accord with these reasons making them known if possible to their constituency.

Finally, one can only repeat here that abortion, as all that the Pope and the magisterium have referred to as "culture of life" issues--euthanasia, cloning, embryonic stem cell research, the nature and definition of marriage and family-are not exclusively sectarian or religious questions. They are questions of fundamental human and civic concern about the origin and destiny and transmission of human life-they are human and civil rights questions and questions about the common human good for which science as such can provide no normative answers. Theistic citizens, whether they belong to a religious denomination or not, have every right to vote according to their theistic beliefs about the origin and meaning of human life on policy matters-unless, absurdly, one thinks anti-theism can be fairly written into the constitution of a just, religiously neutral, democratic polity so that state-sanctioned infanticide, as theistic citizens see it, can be justly imposed without recourse on the society against the expressed will of a sizable portion of its populace.

One would have thought that with our hindsight now on the twentieth century we have no excuse for ignorance about the human rights atrocities perpetrated by officially atheist regimes. I am reminded of the fitting observation by the Harvard philosopher Hilary Putnam when questioned as to why he had later in his career returned to the religious, specifically Jewish humanism in which he was born. Putnam responded that the atheist or secular humanism that developed from the time of Feuerbach onwards seemed to him to be all about the deification of man-and that he didn't see anything in the twentieth century that made him want to deify man. An apt reminder this for those in Brussels and elsewhere today intent on practicing golden calf politics and promoting the worship of man by man and the joyless and hope-less culture of ephemeral hedonism-the culture of death. An apt reminder too for those self-described Catholic publications, schools of thought, etc. whose moral and political commitments seem to amount to little more than atheistic humanism with the gloss of religious symbolism-a kind of Humanist Manifesto with a new cover, one now decorated with pious pictures.

What all citizens and public servants, both Catholic and non-Catholic alike, and what all members of the clergy and hierarchy are called, are duty-bound, to be, is Caesar's good servant, but God's first. As St. John Fisher and St. Thomas More taught us, by word and example. And what Catholic statesman, what Catholic shepherd, does not long for, if necessary, martyrdom for the good of his charges in imitation of the Shephard of shepherds and King of kings?

Thomas D'Andrea
Wolfson College, Cambridge

Introduction - Conor Gearty - Thomas D'Andrea - Aidan O'Neill - Timothy Radcliffe OP

In search of common ground

Conor Gearty, Catholics in Public Life, Lincoln's Inn, 13 January 2005

The purpose of these few remarks before we move to discussion of Aidan and Tom's two presentations is to consider whether it is possible to identify any common ground between the two positions that they have each now staked out. I think that there is plenty of consensus between our two speakers which sharp differences of emphasis on the margins should not be allowed to obscure. I would identify their agreed positions as the following.

1. Both Aidan and Tom accept the legitimacy of the existence of a democratic state. In the written versions of their talks, they do, it is true, each give slightly different versions of what is entailed in (to use Tom's phrase) 'any credible version of democratic theory', with Tom going for what might be called a 'thin' version (the right to vote, the right of all to engage in political debate) and Aidan's being rather 'thicker' (democracy embodies the 'substantive values' of liberty, equality, tolerance, pluralism, and respect for human rights and the structures of the rule of law'). But neither rejects the existence of a secular democratic polity, and therefore one must assume neither would want such a political system to be superseded by anything else, a Church-run society for example. It is probably true that Aidan is clearer on this than Tom but I would hazard that Tom believes it with equal conviction.

2. Both Tom and Aidan believe in the existence of the Roman Catholic Church, and for the purposes of the discussion this evening, neither takes issue with its internal organisation or government. Our concern here is with Catholics in public life, not within the Church itself. (It may be, though, that many of Aidan's anxieties about the involvement of the Church authorities in directing the consciences of Catholics in public life flow from his concern about the direction the Church is taking on these matters, a concern that Tom would seem not to share, or at least not share to the same extent.)

3. Membership of the Church neither is nor should be compulsory. I think both Aidan and Tom take this view, though it may be that Aidan sees membership as more culturally entrenched than does Tom, less easy to escape from than - say - a rifle club or the local golf club, though I am not suggesting the analogy is Tom's.

4. Following on from the first head of agreement, both Tom and Aidan accept the existence of other faith communities in a secular democratic society. They may with differing degrees of enthusiasm feel that such faith communities are wrong, or have a particular and incomplete perspective on truth, but neither so far as I can see would regard the Roman Catholic Church as properly the only mechanism through which a belief in God should be expressed. It may be that their faith in the rightness of the Catholic message would lead them to wish that to be the case, and to work towards such a situation, but it is not one which can credibly be imposed on the democratic society to which both are committed.

5. The Roman Catholic Church does not seek to rule in any formal understanding of that word. As Tom puts it in his written paper this would be 'the error of clericalism'. It is no part of Aidan's argument that they seek to do so, it is the influencing of the faithful by the hierarchy that concerns Aidan, not the formal engagement of the hierarchy in politics.

6. As practising Roman Catholics, both Aidan and Tom agree on a fundamental difference between secular democratic and Catholic approaches to truth. In democracy, truth emerges out of the political discourse: it is fashioned by representatives, composed out of a mass of rival feelings, emotions and needs that compete for attention. In the Roman Catholic Church in contrast, truth is entirely out of fluctuating circulation, above the fray: it is to be found, not forged. I am not sure though that this agreement would lead Aidan to agree with Tom when he says of the individual that his or her 'conscience does not invent the truth about how one should act: if properly functioning it discovers the truth'.

7. Both Tom and Aidan belief in the concept of human rights, with Aidan seeing this as a proper subject for secular society and as one the adoption of which has made us all 'heirs to the Christian tradition' (para 7.4). I think it follows from the different way in which secular democratic society and Church approach truth that both Aidan and Tom would agree that the content of human rights cannot be necessarily the same across the spectrum of the secular and the church. There may be overlap but there need not be, and there can be extreme conflict even where a concept seems to be shared, as with the definition and prioritisation vis-à-vis other rights of the right to life for example.

8. As a matter of fact, both Tom and Aidan agree that not every Church leader spoke in the way of which Aidan disapproves. It may be that Aidan wishes none had spoken in the way he describes and that Tom wishes rather more did. But the fact remains that only a few did, and neither speaker believes they should have been or wishes they had been stopped, at least by the civil authorities. Tom is clearer on this than Aidan, but think we can safely assume that Aidan would not want a law censoring such speech.

9. It follows that as I understand it there is common ground on the right of all - including authority figures in private associations (such as religious communities) to speak on political issues. This right extends beyond being merely the consequence of the absence of any inhibiting law but is reflective of something that is a good thing in itself, namely the participation in the democratic community of all its members, not excluding for these purposes the leaders of such a polity's various faith communities. If those leaders come also from overseas, it would seem that neither Tom nor Aidan would stop them speaking on that account alone. What matters is the extent of the speech in question, the fairness of its deployment, the extent to which it conceals political partisanship, and the degree to which it is backed by ecclesiastical sanction. On these points there may be continuing disagreement.

10. On the conduct of the Catholic layperson in public life, Tom and Aidan seem to agree that such a person may involve him or herself in politics despite opposition as a Catholic to aspects of the current laws. They may also underplay their Catholicity 'for prudential reasons' as Tom puts it. Implicit in this is, I think, the fact that both speakers agree that while it might be right not to draw attention to one's Catholic beliefs unnecessarily, that it is nevertheless wrong intentionally to hide such beliefs or to mislead others about their nature with a view to securing advancement in public life. (If I am right that there is common ground here, then this is a major point, as it is the fear of secret societies and secret strategies of governance that drives a great deal of what mistrust there is today about the involvement of Catholics in contemporary democratic politics.)

11. Both Tom and Aidan agree that those administering the law have no discretion on the basis of their faith to refuse (to quote Tom) 'to say the law of the land is not in fact the law of the land'. Tom thinks that Catholic lawmakers in contrast 'have a positive obligation to work to change intrinsically evil law, even if gradually'. Both Tom and Aidan agree that it is possible for a Catholic to dissent from the magisterial teachings of the church, but they would seem to differ on the breadth of any such dissent, with Tom's perspective seeming to be rather narrower than Aidan's. This may turn out to be the key point of difference, the degree to which we can as Catholics manoeuvre our consciences away from unattractive (to us and/or our constituents) aspects of our faith, despite these aspects being described by the Church leadership as fundamental.

Conor Gearty
LSE and Matrix 10 January 2005