Tuesday, June 21, 2011

The State and Just Laws?

Burning heretics is an objection lobbed against the Church very often from all manner of Her enemies, be they Protestants who see the heretics as peers and heroes, liberal secularists and atheists who see it as proof of the danger of organized religion (or of any ideology with an Absolute anchoring meaning), or even (and perhaps especially) dissenting Catholics who want to make fallacious arguments about how the Church has changed teachings before and so can change again or about "primacy of conscience."

I have usually dismissed such arguments as simply symptoms of how people have made an idol of our modern regime of democratic pluralist relativist secularism (which itself has more blood on its hands then any other system in history, not to mention an infinity of corrupted souls). To judge the Church by some external meta-value is to make it clear that ones loyalties, in the end, lie with The World, and that religious identity has been compartmentalized as something less than totalizing, that God has not been given one's whole heart after all (which can only ever mean denying His transcendence and boxing even His meaning, at last, into the enclosed context of Self).

However, always trying to keep the "renegade" balance that I attempt (and fail often at), I have also expressed in the past a concern about the wrong sort of totalism in religion, a malignant fundamentalism, leading to a suffocating institutionalism of the mind that isn't healthy for the individual or society.

Nevertheless, as a medievalist by training, I have remained inclined to see capital punishment for heretics as at least theoretically justifiable on principle in at least hypothetical historical contexts (though the prudence or necessity of each individual case or in each actual historic and geographic context is certainly up for debate). I certainly see the imposing of our modern secular values onto the past as suspicious; I, for one, do not believe in a sort of morally progressive narrative where mankind "knows better now." I simply look around me and see that this isn't true. I have to agree with historian Paul Johnson who said, "There is something repellent, as well as profoundly unhistorical, about judging the past by the standards and prejudices of another age."

Of course, either way it would not actually effect the infallibility of the Church or anything; it remains a question of the prudential application of certain principles to concrete situations, and that certainly isn't dogmatic. Still, I have grown accustomed to pointing out that the Church never executed anyone; they knew its power was limited to the spiritual and that excommunication was the most grave punishment it could issue, the Church made no claim over the body. It handed heretics over to the "secular arm" and thus, whatever injustice may have arisen in individual cases, that the State, in Christendom, was punishing heresy as temporal crime, as a form of treason or sedition threatening the unity and stability of a society that was based, even in its civil order, on Catholic hegemony. And thus was as justified as any State is for punishing treason or sedition or lesser crimes.

No Catholic can deny that the State has a right to use coercive force on its members, even to the point of death for the guilty, for the sake of the common good. And so, if it could even be just imagined that heresy could ever threaten the temporal common good in any hypothetical case (even if you don't think it actually did historically)...then, at least hypothetically, the burning of heretics would have to be admitted as not intrinsically wrong on principle even if one disagrees that it was actually ever just or prudent as it actually occurred in history.

To me, this seemed pretty clear. The major premise is that the State can use coercive force, including capital punishment for the guilty, for the common good. The minor premise was that heresy could at least be imagined to threaten the common good in some cases (and really, almost anything could be imagined to threaten it in some case). The syllogism seemed pretty simple.

However, recent conversations have sewn a little bit of doubt about this conclusion for me on several grounds, have made a few things seem a bit "off" about this conclusion, and so I'm going to be throwing some thoughts out here now and ask my readers to be a sounding board. I have some questions for which I am not yet quite sure of the answers.

The first and most obvious objection to the "logic" I have argued is that, indeed, almost anything could be imagined to threaten the common good in some case. Including Christianity itself. There is no doubt that there are some societies based on other ideologies in which Christianity would be the subversive thing, in which its spread would lead to the sort of chaos that one saw in the religious wars following the Reformation. What is faulty, exactly, about Red China's claim to see the underground Catholic Church as subversive of their social stability and common good as a nation?

My initial inclination was to answer that heresy against Christianity is actually, in the objective order of the universe, a sin. Objectively speaking at least [it would be hard to determine the subjective culpability of people convinced of the truth of some other religion or ideology], the State can only punish people who are actually morally guilty of something. But there is no sin, objectively, in not being Communist or Muslim or anything like that. And even for the common good, the State can't punish what isn't objective wrong. So, yes, there is a double-standard, but it's one that comes from the fact that, objectively, Christianity is right. Error, on the other hand, has no rights. It's not a double-standard from a Catholic frame-of-reference not tainted by pluralism.

However, a friend recently made me realize, the State makes laws about lots of things that aren't, in fact, intrinsically sinful or morally obligatory but which it nevertheless feels, in context, are best for the common good: laws against jay-walking, having a drinking age, safety regulations, collecting taxes, etc. The State seems to be able to legislate against not only things sinful in themselves, but against neutral things and even optional good-in-themselves things if they are seen as harming the common good.

Well, this opened up a different can of worms for me mentally, which is what I'm asking about here basically: namely, if the State is allowed to make a crime out of actions which are not intrinsically sinful, such as not paying the government a certain amount of money (ie, taxes), or jay-walking, or drinking under 21, under the determination that these things are threatening the common good...what's to stop the government from turning socially inconvenient innocent people into civilly guilty people by passing a law against some neutral activity they engage in under the argument that it threatens the common good?

Who gets to determine whether a given (otherwise morally neutral) act does indeed constitute a threat to the common good except the State itself? But, then, what if the State says something as trivial as playing with toys or whistling is a threat to the common good? Who has a right to question that? And, unless conscience positively compels us to do these things, aren't we still bound to obey such laws?

I think of Prohibition in the US. Sometimes people (exaggeratedly anti-puritanical Catholics especially) speak as if this law was "unjust" and that people were thus free to ignore it. And while I do tend to agree now that Prohibition was not achieving the common good...do private citizens really have the right to make that determination privately by themselves and thus ignore such laws? If someone felt it was part of a positive obligation in conscience to drink (as, say, part of a religion) that would be one thing. But arguing for private judgment of whether a law was really necessary would seem to be a slippery slope leading to people being absolved for not paying their taxes if they disagree that the current tax-rate is best for the common good...

But then, outside morally obligatory things, are we to admit that the State has an unlimited right to outlaw bad, neutral, and merely optional good things as long as it is under the pretense of being a threat to the common good?

What is the relation of conscience to the State, then? Obviously, there are limits to the freedom the State can provide conscience. If someone believed human sacrifice was a morally binding part of their religion, the State would not have to protect this, and could punish or execute that person if they did it. The "solution" in the internal forum to their claim of conscience is simply that, if they really believe it is morally obligatory, then they should do it and then submit to the consequences. That's exactly what the Christian martyrs did.

But then let's go back to a situation like a Communist state, where opposing Communism might really cause an entire social breakdown and collapse and even more deaths (in a manner analogous to how heresy threatened the very stability of Christendom). Is it still unjust for the State to punish opposing communism? Or must we say in such a case that the law is unjust because it goes against something a higher law (the Divine Law) has made obligatory?

Well, that's easy enough for us Catholics to say. But the Communists themselves certainly aren't going to understand it that way, and there are some religions where communism may be perfectly compatible with them. Is it just to make members of those religions adhere to communist principles if the State decides that is best for the common good? What are the limits on what the State may illegalize or require under the pretense of "common good"?

Or take the example of a man who has some mutation that means he could be used to cure all manner of diseases. The only problem is he'd have to be killed to get it. What's to stop the State from killing him for the sake of the common good? Presumably, because he's not "guilty" of any "crime." But if "crime" is only relative to the "common good"...what's to stop this man's continued living from being called "criminal" in light of how it detracts from the common good?

Does "crime" have to involve a free choice to be punishable? But what of the State's power to restrain the violently insane? Surely they make no free choice, and yet are still a threat and thus restrainable.

Basically, I'm asking, given that intrinsically neutral or even optionally-good actions can be made illegal, by what standard can laws be judged "just" which does not reduce to simply a utilitarianism regarding the common good? A circular definition wherein the justice of a law is determined only relative to whether it secures the most good for the most people seems to lead to this sort of utilitarianism. And I've been wondering today whether maybe the justification of the State punishing heretics, even if to prevent chaos or social collapse, isn't simply this sort of utilitarianism. But then, by what other standard than maximizing the common good can a law be said to be just? Not simply the moral law, as the State can illegalize things which aren't immoral. What is the standard then?

What line is drawn to prevent sacrificing the individual in an instrumental manner to the collective? Without denying the obvious fact that the State does, in fact, have the right to exercise physical coercion over its members for the sake of the common good? At what line do the rights of the individual outweigh the good of all the rest? Or, rather, what line is the bare minimum that must be crossed for an individual to be considered to have forfeit his rights in the face of the common good?

"Conscience" doesn't seem to work as a category here, as (considering the human sacrifice example) we know such a right is not absolute, it too bows legally in the face of the common good. Is the common good really found in a hierarchy of individual goods or rights, where the higher rights of an individual can never be sacrificed even for the lower good even of a great number of individuals (say, the right to property will always bow to the right to life; so someone can steal to not starve to death, and no one can kill a person simply to protect things)?

But then what exactly is the hierarchy? The good of "tolerance of religion" would seem to bow to the right to life if the human sacrifice example is any indication, and so killing heretics to protect society from total collapse would seem justified. Except, would the freedom of Christian religion bow to the right to life in these cases? I wouldn't think so, that seems pretty absolute of a value. Then must we distinguish between freedom of Catholics and the tolerance of others on the hierarchy of what goods must bow to which? We're left there with the same argument that I'm fine enough with, but which understandably looks like a double standard to some...

Thoughts?? Answers??

6 comments:

Who Am I said...

I'm curious as to what counts as a heretic in the evangelatory phase of The Faith. Does that dictate that the secular arm CAN as it were kill people who refuse to convert ? Does The Church's secular arm have jurisdiction over such souls ?

I'm curious about THAT.

Your application of the material is on the basis of an already Christian society (mainly Western), but what of places that have yet to be evangelized or places The Faith exists as a minority, what then ?

Can the secular arm REALLY put into effect laws that coerce The Faith ?

You know what I'm talking about here. I'm with you on the dissenting views for those who are under The Church's jurisdiction and even then, I'm a bit more cautious in that regard. How many people were accused of heresy, supressed etc. to only be vindicated centuries later. Your own blog is an ideal example of such a position. If we lived in a Rad Trad society, your views, my views and a host of other views in the blogosphere would be seen as going against the common good. Sure, we can reconcile our views this way and that way, but that's merely because we've been afforded that "liberty". Its the same liberty that would have allowed for a person to be accused falsely, tried, put to death and then later vindicated (St.Joan of Arc...).

While The Chinese Rites controversy didn't lead to death, it lead to PRECISELY what we see today in terms of The Church's position in the nation.

Mind you, I'm not saying lets have a free for all (Look at where that takes us in some places...), BUT I do think SOME leg room is necessary for evaluating certain positions. Its curious, because this past weekend I got into a discussion on a related matter. A friend and I were discussing how Islam places double standards by in effect incentivizing the dwindling of Christian communities and conversion to Islam. He mentioned that a man and his daughter (IIRC) would have been EXECUTED for "apostating" from Islam (They're Arab Muslims) and embracing Christianity. The man converted with his daughter (Praise be to GOD), but they did so upon moving to Israel. Mind you, he nor I are apologists for the things that go on in Israel (Zionism etc.), BUT the man would have been killed for "dissenting" all for the sake of the "common good".

So as you and I both stated, things need to be CAREFULLY studied in light of the times we live in. I mean IIRC, Peres offered Jerusalem back to The Pope, The Pope refused, BECAUSE of the action that would have been taken by The Muslim world on its Christian communities. Its not a good place to be in. The Church's authority as it were, is returning to the way it was in The Early Church Era.

Stohn said...

I have a question regarding these to statements:

"No Catholic can deny that the State has a right to use coercive force on its members, even to the point of death for the guilty, for the sake of the common good."

"the obvious fact that the State does, in fact, have the right to exercise physical coercion over its members for the sake of the common good"

Why are these given absolutes? Based on what? (I'm not necessarily disagreeing with you, I'm just curious why these are absolutes)

Also, could the martyrs also be viewed, not necessarily as legitimizing secular state power, but as 1) submitting to the will of God over the will of the state (sorry for the lack of legal language) and 2) offering non-violent counter examples to the violence of the world (in effect non-violently 'protesting' against the state)?

Mark of the Vineyard said...

Perhaps I'm reading this wrong, but didn't Christians take the "we know better now" attitude in relation to certain practices of the OT?

Also, is it true that certain burning of heretics was a burning in effigy, and not the actual person? If so, how common might this practice have been?

A Sinner said...

"I'm curious as to what counts as a heretic in the evangelatory phase of The Faith. Does that dictate that the secular arm CAN as it were kill people who refuse to convert ? Does The Church's secular arm have jurisdiction over such souls ?"

I think you misunderstand me. The point of this post is that I'm reconsidering whether, in fact, the State really was ever justified in burning heretics, or at least whether the theoretical possibility in some hypothetical scenario is binding on Catholics as deducible from first principles.

Under the assumption that it could be okay, there are two points: 1) the secular arm is not "the Church's"...the State and Church are, in some sense, autonomous even if they largely overlap in membership. One has authority over the temporal sphere, the other over the spiritual. It's cases of the two being intertwined organically in a society that complicates things.

Second, the Church has never claimed to have any sort of jurisdiction over the non-baptized, and even baptized non-Catholics who never were Catholic, though they remain "subjects" of the Church in virtue of their baptism, are not said to be "members" of the visible Church.

Your question in some sense, though, gets to the heart of my question about what constitutes a just law. Okay, I used to argue, the State can punish heresy as a threat to social order. The question then arises, "Well, could they punish a Jew or Muslim for not converting either?" I would have said no, because they've committed no sin. But, as a friend made me realize, the State punishes lots of things as a threat to public order which aren't sins. The STATE doesn't need to worry about whether someone is under the jurisdiction of the CHURCH. But then why should it be able to enforce Catholicism on heretics for social stability, but not the unbaptized? Claims of "conscience" don't really work, as the heretic might have a valid claim in conscience too! This is where I have started to doubt a little the logic of saying the secular arm can burn heretics. If it can do that for public order, I see little reason it couldn't punish the unbaptized for not converting. But the Church has never admitted THAT...

"Can the secular arm REALLY put into effect laws that coerce The Faith ?"

Well, belief itself can never be coerced by nature. The argument was that it could punish people for doing things like speaking of or practicing their heresy externally.

"Its the same liberty that would have allowed for a person to be accused falsely, tried, put to death and then later vindicated (St.Joan of Arc...)."

Yes, which is why I'm reconsidering my position.

A Sinner said...

"Why are these given absolutes? Based on what? (I'm not necessarily disagreeing with you, I'm just curious why these are absolutes)"

The State would be useless if it couldn't use coercive force against its members of some sort. That's the whole point of a State. If it couldn't, at the very least, stop/punish thieves and murderers through policing force...there'd be no point to a State authority in general.

A monopoly on Force, on violence, is exactly what the State is supposed to have in order to ensure public peace. It's a dangerous thing for any institution to have, of course, which is why we always must be suspicious of the State.

But in itself, that's simply the nature of a State. And the Church has always admitted this in the Ordinary and Universal Magisterium.

"Also, could the martyrs also be viewed, not necessarily as legitimizing secular state power, but as 1) submitting to the will of God over the will of the state (sorry for the lack of legal language) and 2) offering non-violent counter examples to the violence of the world (in effect non-violently 'protesting' against the state)?"

Well exactly, I think that's how many of us do view them.

A Sinner said...

"Perhaps I'm reading this wrong, but didn't Christians take the 'we know better now' attitude in relation to certain practices of the OT?"

Not really. They saw such practices as perfectly valid and, in fact, God-given under the terms of the Old Law.

It's just that we had NEW Revelation in Christ that fulfilled/superceded the precepts of the Mosaic Law.

But, we have had no new Public Revelation since Christ, nor will we. So the idea that "we know better now" in any substantial way that would actually change things in practice (as opposed to just having explicitly formulated more of the truths that were ALWAYS in the Deposit of Faith and orthopraxy) in some sort of evolutionary manner according to merely our own human intellects...strikes me as incredibly presumptuous.

"Also, is it true that certain burning of heretics was a burning in effigy, and not the actual person? If so, how common might this practice have been?"

True, it was done. Heck, I'd bring back burnings-in-effigy today were I Pope, just to be dramatic.

But lots of real people were still burned too, there's no doubt.