by Dale Ahlquist
"Mary, Sign of Salvation" by Fr. Brian Daley, S.J.
October 2004
"Catholic Social Teaching and the Law" by Michael Scaperlanda
"The Catholic Church: Defender of Freedom?" by H.W. Crocker III
November 2004
"Prayer" by Bishop Thomas J. Welsh
"What is 'Church Authority'?" by Peter Kreeft
December 2004
"How Tradition Gave us the Bible" by Mark P. Shea
"God Speaks to Us: The Liturgy of the Word" by Rev. Peter Stravinskas
January 2005
"Angels and Demons" by Alfred Freddoso
"The Da Vinci Code" by Bishop Robert Morlino
"The Year of the Eucharist" by Bishop Robert Morlino
Catholic Social Teaching and the Law
By Michael A. Scaperlanda
Pope Leo XIII’s 1891 encyclical, Rerum Novarum (On Capital and Labor) is widely recognized as the beginning of modern Catholic Social Teaching (“CST”). Since that time, numerous papal and episcopal documents have brought the Church’s teaching into dialogue with each succeeding generation’s pressing political, cultural, social and economic questions. As the Second Vatican Council said, in Gaudium et Spes (Pastoral Constitution on the Church in the Modern World, “GS”), paragraph 40, “[t]he Church believes it can contribute much to humanizing the family of man and its history through each of its members and its community as a whole.”
Several prominent themes emerge in CST all rooted in the dignity of the human person. Building on a Trinitarian theology, CST recognizes that human flourishing occurs within community. Private property is necessary, but it as well as all other goods must be ordered to the common good of all. Toward this and other ends, the principle of solidarity emerges, acknowledging that we are all one human family with gifts to share rather than treasures to horde. Therefore, CST recognizes our common responsibility to the poor and marginalized. And, while the state is a necessary instrument for the functioning of the community, the principle of subsidiarity requires that decision-making and consequent action take place at the smallest level of society that can adequately address the issue. In other words, if the individual or the family can handle an issue, it ought to be left to them. If government intervention is needed, preference is given to local government so long as it is competent for the task.
Catholic Social Thought is both practical and foundational. In this essay, I will address three different ways in which Catholic Social Teaching interacts with the law and the legal profession. First, CST, at a pivotal time in our history, proposes a solid foundation upon which to build our society. Second, in applying the principles of CST in law practice, the practitioner can be transformed. Third, working together with others of good will, Catholics applying the principles of CST can work to enact and enforce laws that will lead to a more just society. For an interesting blog dedicated to the development of Catholic legal theory based on CST, see Mirror of Justice.
Foundations
In his farewell address to the nation, President George Washington said: “Of all the dispositions and habits, which lead to political prosperity, Religion and Morality are indispensable supports. In vain would that man claim the tribute of Patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of Men and Citizens. … [R]eason and experience both forbid us to expect, that national morality can prevail in exclusion of the religious principle.”
During the last half century, America has increasingly ignored Washington’s warning by banishing God and any talk of truth with a capital “T” to the private sphere of subjective personal belief. At the symbolic level, we see this in attempts by judiciary to remove “one nation under God” from our Nation’s pledge; prayer from our school classrooms, graduations, and ballfields; and the Ten Commandments from our courthouses.
At a deeper level, we see this when the Supreme Court put its imprimatur on what an approving justice described as the “gruesome” procedure of partial birth abortion and in the Court’s adoption of a secularist post-modern understanding of the meaning of life. In its 1992 decision in Planned Parenthood v. Casey (reaffirming Roe v. Wade) and again in Lawrence v. Texas (the 2003 decision holding that the practice of homosexual sodomy is a protected constitutional right), the Court stated that “[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and the mystery of human life.” According to the Court, we create ourselves, unbounded by Truth and unhindered by the reality that I did not cause my existence, and I cannot stop my departure from this life.
What are the effects of forgetting the lessons taught by Washington? Post-modernist Richard Rorty, in his book Contingency, Irony, and Solidarity, recognizes that in a world without objective truth, one “cannot give a criterion for wrongness.” As a consequence, he concludes, we cannot characterize the Nazi’s as wrong or objectively immoral. Pope John Paul II agrees with Rorty, “if there is no transcendent truth, in obedience to which man achieves his full identity, then there is no sure principle for guaranteeing just relations between people.” (See Veritatis Splendor, Paragraph 99)
This Pope, who has lived under both Nazi and Soviet tyranny, concludes that when freedom is divorced from truth “self-interest … would inevitably” set person against person, group against group, and nation against nation. “If one does not acknowledge transcendent truth, then the force of power takes over, and each person tends to make full use of the means at his disposal to impose his own interests … with no regard for the rights of others.”
To sum up the problem, our culture today is attempting to develop a thick conception of rights (we demand our rights, liberty, and equality) on the back of a very thin conception of the human person as a material being who is not ordered to any particular good. In this worldview, homosexuals can marry each other, woman can have abortions, pornography is merely a matter of personal taste, and the middle and upper classes can continue consuming with no thought to the poor, the elderly, or the immigrant. To each his own, as the old saying goes. This system of thick rights and thin persons is not sustainable as the Pope so forcefully noted.
Given the current situation, CST interacts with the law by proposing an adequate foundation for the just ordering of society, rooted in the transcendent dignity of the human person. As creatures made in God’s own image, we know that each and every human being has inestimable dignity. And, as Pope John Paul II so often reminds us, the central truth of CST is found in paragraph 22 of Gaudium et Spes: “Christ the Lord, … in the very revelation of the mystery of the Father and of his love, fully reveals man to himself and brings to light his most high calling.”
Using both theological and philosophical (natural law) reasoning, proponents of Catholic Social Thought can urge our nation to reconnect freedom to its only secure foundation in Truth. We can reassert a truth now long forgotten that “life, liberty, and the pursuit of happiness” are not mere creatures of the state’s largesse but are inalienable gifts granted to us by the Creator. If we fail to remember this truth as a People, the American project in self-governance is in serious trouble. Therefore, this is the most important work for CST and the law at this period in our history.
Personal Transformation
On a personal level, for the practicing lawyer, responding to the call of CST can lead to a personal spiritual transformation. State bar associations across the country encourage lawyers to engage in “pro bono” work, providing legal services to those who cannot afford it. This is commonly referred to as “giving back” to the community. In Catholic circles, we talk of “solidarity” and a “preferential option for the poor.” A miracle can occur within us when we “spend” ourselves for the poor and the marginalized. As the good book says, when we “give back” we “get a hundredfold in return.”
Attorneys who choose to leave their comfortable office environments to work for prisoners, the homeless, or immigrants – even for an hour a week – often find their own lives transformed. After ten years of practicing law, one of my close friends felt the pull. Both the bar association and his Catholic understanding of solidarity with the poor were tugging at him, whispering in his ear that he “should” spend some of his time working for free by representing poor clients. He decided to volunteer at our local Catholic Charities’ Immigration Assistance office, helping handle political asylum cases.
In this work, he truly was Christ for those in serious need. And, he saw first hand the face of Christ in those he helped with his legal expertise. He told me of a client, a woman, who successfully received political asylum in the United States. With tears in her eyes, she thanked him, saying that he had literally saved her life. Her brother had been killed by their native government the previous day, and she could have expected no better if she were forced to return.
The gift (the giving of self) in this attorney-client relationship was a two-way street. In her own small way, this refugee had a part in saving my friend's life, transforming the moral “obligation” to help the poor into an act of “love” whereby he responded with his legal talents to the woman who had been placed in his care by the Father.
Practical and Prudent Application
Given the inherent dignity of each and every human being and the state’s obligation to protect the weak and the marginalized, CST teaches that certain actions such as abortion, human cloning, and euthanasia should never be allowed by law. As for the rest, “the Church is universal in that it is not committed to any one culture or to any political, economic, or social system.” (Gaudium et Spes, Paragraph 42).
Nations legitimately have broad discretion in creating political systems, and individuals legitimately have broad discretion in formulating policy and enacting laws within the system. Both cases call for prudential judgment. And, within the CST tradition, Catholics of good will can disagree, even vehemently, about what course of action to take.
CST, for example, defends the right of an individual to own private property. But, unlike the individualist mentality prevalent in present day America, CST views even private property as ordered to the common good of the community. CST also requires that each of us stand in solidarity with the poor. CST does not, however, dictate how someone’s property ought to serve the good of the community or how the poor ought to be cared for. Instead, it leaves the question to the prudential judgment of those lay people who are called to shape public policy. And, some well formed Catholics acting in good faith will conclude that the state must play a larger role in implementing these CST principles while other well formed Catholics acting in good faith will envision a smaller role for the government and a larger role for the market, voluntary associations, and private relief agencies.
CST respects the expertise of various secular disciplines, such as the sciences, social sciences, the humanities, and the arts and challenges these disciplines to serve humanity. Today, we urgently need lawmakers, economists, employees, employers, doctors, and insurers to view the looming crisis in health care through the lens of CST. Here, CST is clear on the broad principles – adequate health care is required for human flourishing. We (the broader society) have a moral obligation to help the poor who cannot afford health care. Health care should be managed and delivered at the local level where possible in a manner consistent with the principles of subsidiarity.
The big question – the question for your generation – is the “how to” question. Should we rely solely on the free market? Or, should we nationalize health care and have the government take it over? Or, should Congress create some carrot or stick incentives to serve as governmental tools for correcting the markets? The answers are beyond my ability, but I bet some of you reading this will be able to use your areas of expertise to begin to apply CST to this very real problem and begin to creatively construct solutions.
Michael A. Scaperlanda is the Gene and Elaine Edwards Family Chair in Law at the University of Oklahoma College of Law.
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