Friday, July 8, 2011

Even More Thoughts on the State and Just Laws

If you've been following the blog these days, you'll know that I've recently been wrestling with the issue of the limits of civil authority and the nature of just laws and punishments, specifically in dialogue with the [now thankfully] hypothetical question of the burning of heretics as my foil or test case.

To remind you of my thoughts thus far, I started with the necessary understanding that it was the State, not the Church, burning heretics, and that they were doing so allegedly to preserve the temporal order, heresy threatening the social stability of Christendom with collapse in the manner of sedition. I would readily admit that whether heresy constitutes such a threat is historically contingent, but would emphasize that, theoretically at least, the State does have the power to use coercive force over its subjects, up to and including capital punishment, for the sake of the common good.

However, I then brought up several issues that had raised serious questions for me regarding the idea that heretics could ever be punished (by capital punishment or otherwise) on these grounds. The first was simply the question of what it was within the State's power to illegalize and punish. Clearly, human law is not to be simply co-extensive with the moral law, as the State has the power to illegalize some things not intrinsically immoral, and to require additional things of its citizens not intrinsically obligatory before God (it's also clear that not all which is immoral should be illegal).

Well, the teaching is that the State must act "for the common good," but this raises the question of what constitutes the common good. I concluded that one thing that must be remembered about the common good is that a crucial difference between the State-Body and an individual is that the State only exists for the good of each and every individual member. A purely utilitarian approach by which the State does "whatever it takes" to simply maximize "the greatest good for the greatest number" within the clearly not acceptable, as then innocents might be killed purely for the purpose of such utility, or Christianity itself illegalized if it threatened temporal order (as no doubt, under some regimes, it might), etc.

I also have been toying with at least three concrete examples which I think are relevant to answering this question, though I'm not entirely sure what my thoughts on them are yet. These are: the fact that while Christian heretics could be punished, Jews and Muslims were recognized as not falling under the same jurisdiction (and yet, why should whom the Church has jurisdiction over affect which forms of error the State can punish for the sake of the common good?), the fact that acting on "conscience" can clearly be limited for the common good as in the case of human sacrifice, and finally the example of laws against holocaust denial in Germany (surely an example of a secular heresy being punished) and also against spreading libel or slander (even if you believe they're true).

Last night I had a conversation with a friend exploring this question further. I think the most important concept added to my thoughts on the question in the course of this conversation was the notion of rights. Although the term "human rights" sets off alarm-bells for some traddies, I realized that the idea of justice really only makes sense in the context of a system of rights, and that any question of just punishment on the part of the State vis a vis the common good must have reference to the natural rights of citizens.

The State can, for the common good, revoke or limit some rights for the sake of the common good, but it became clear that, in order to be just, punishment must have some sort of proportionality to the crime committed, and also must truly be related to redressing the harm done to the common good caused by the crime itself; a State with overpopulation could not kill innocents simply to solve this problem, but it also couldn't punish something trivial like littering with capital punishment if the real motive was to use this as an "excuse" to solve the overpopulation problem.

The "system" I've tentatively been assuming in my head is that there are three levels of rights relative to the State. The first are those rights even the State has no authority over; the State could never use sex or marriage as punishments or force anyone into them, nor can it ever revoke the right to practice the True Faith, etc. The second level are those rights which could only be revoked by the State as a justly meted-out punishment for breaking a just law; this includes Life and perhaps something like parents' custody of their children. The third level are rights which can apparently be revoked or limited by the State simply for the common good even without the person needing to forfeit them by a crime; the biggest example, I think, is private property (taxation is certainly allowed; render unto Caesar) as well as, even, freedom of motion and occupation I'd think (say, a draft, whether into the army or just labor).

This third category I would relate to the question of slavery, which also came up in this conversation. I asserted that slavery, as an institution, is not theoretically against the natural law (even thought it was much abused). That no ones intrinsic rights are being violated if society decides to organize itself economically into stable classes and reciprocal relationships by which one class has a duty to labor for another in exchange for their keep. "Which rights are being violated?" I asked; it doesn't seem like there is an absolute right to occupational mobility or to refuse to labor if society assigns that as your duty.

The slavery question is not the point of this post, but the article on the ethical aspects of slavery in Catholic Encyclopedia said something interesting that I thought is relevant: "Slavery is not to be understood as conferring on one man the same power over another that men have over cattle. Wherefore they erred who in former times refused to include slaves among persons; and believed that however barbarously the master treated his slave he did not violate any right of the slave. For slavery does not abolish the natural equality of men: hence by slavery one man is understood to become subject to the dominion of another to the extent that the master has a perpetual right to all those services which one man may justly perform for another; and subject to the condition that the master shall take due care of his slave and treat him humanely."

The sort of slavery which the Christian tradition would not consider as absolutely excluded by the natural law, then it seems, could only ever be one in which society confers on the master the right to only those things (such as private property and labor) which the slave would have been able to give up justly in a private contract anyway. The master's rights cannot extend beyond those; masters can only expect from their slaves what the State can justly expect from its citizens. And these things seem to correspond to that "third class" of rights I discussed which the State could revoke simply for the common good rather than as a punishment. One may justly give up one's rights to private property in contract with another. One may not, however, justly give anyone the right to kill you or to bind you to a false religion, etc. So then, it seems to me, in the case of taxation (or, in what's really simply an extreme form of taxation farmed-out to private individuals: slavery) these rights are given up not as the result of a personal choice in a private contract, but rather as part of the collective social contract.

None of this necessarily answers the punishment of heresy question. It does reframe the question, however. It makes it clear that, though the State can justly limit or revoke many rights for the sake of the common good based simply on the "social contract," it also makes it clear that some rights can only be revoked if they are forfeit through crime, and others can never be revoked. It also makes it clear that rights of my "second" category (like Life) can never be made crimes in-themselves. If they are revoked, it must be as a proportionate punishment for some other crime. The State cannot claim "living" is crime, nor can it take away life arbitrarily even if it would be for the good of the collective in the utilitarian sense (nor, as we discussed earlier, could it be taken away using other "crimes" trumped up merely as an "excuse" to kill people).

So the issue, it seems, is where heresy falls into this scheme. Whether "freedom of religion/conscience" in general (as opposed to "freedom to practice the True Faith," which is conceptually different) really is a right and, if so, which category does it fall into? I would argue that it doesn't fall into the category of absolute irrevocable rights, just given examples like human sacrifice (or, to a lesser extent, even slander and libel, etc). It is certainly a right which can be made to "bow" before other people's rights.

Though actually I could see a distinction here: the right to act on such beliefs may not be absolute given that these acts might violate others' rights, but it might be possible to argue that if the only thing threatening the social order is the very existence and (verbal) spread of the beliefs in-themselves...that this is not something that could be criminalized (because rights in themselves, even if their use threatens the collective good in the utilitarian sense, cannot be criminalized, as discussed above).

This is a possible interpretation, and I might admit that Catholics are free to hold this interpretation and debate it. Frankly, I personally find it rather hard to hold. The Church has always maintained up to and including at Vatican II that "error has no rights." Of course, Vatican II seems to imply the interesting argument that, though error has no rights, it should nevertheless not be coercively suppressed because that threatens the rights of Truth, which must be embraced freely. However, I'm not sure I buy the argument that criminalizing error renders embrace of Truth unfree and coerced. Laws against murder do not make my choice not to be a murderer any less free, virtuous, or morally meritorious. And I'm reluctant to say that everyone's Faith in the Middle Ages was coerced just because there were also laws against heresy.

A final point that was brought up, that I'm not quite sure what to do with yet, is that even if error has no rights, it is not necessarily within the State's competence to determine what Truth is in the religious sphere, and thus that to punish even socially dangerous religious ideas on simply the grounds of the threat represented by their very existence in a utilitarian manner, would be (hearkening back to Vatican II) impinging on Truth's rights (and those of the Church to determine it rather than the State).

So this is where I am with the question right now. It seems to me that the solution is still likely that "the answer will be historically contingent based on the conditions of a given society." For example, a State nowadays trying to punish "error" in a pluralist society seems a very different situation than where there was a widespread social consensus, where "religious" truth was not seen as of a particularly different nature than something like the truth behind potential slander, where it was simply taken for granted (and where heretics really were thus being unreasonably antisocial), and where an organic union of Church and State existed such that the Church would first determine (through Her tribunals) what was the Truth and whether people were heretics before the State presumed to punish them for error.

But I think all these nuances and the complexity of the question of temporal power and justice certainly leave room for Catholics to continue to debate this useful hypothetical about burning heretics, and I would no longer claim that believing it was wrong (even on principle, let alone in specific historical circumstances and cases) constitutes an unambiguous doctrinal error. Though I would also still maintain that the position (which I still sympathize with) that it could be okay for the State to execute heretics if the heresy threatened social order in a functional Christendom, also remains a tolerable position and must be at least recognized as such even by people who disagree, rather than treated as some sort of "obvious" wrong that proves that Church teaching has "changed" or that religion leads to indisputable atrocities.


Mark of the Vineyard said...

I like these posts on this particular subject. Perhaps you can tag them so they can all be found easily?

You've apparently had a lot of time to consider these things. Was this afforded by your studies, especially medieval history?
The topic interests me because I consider it to touch on the subject of how the application of an objective truth can vary depending on historical and/or cultural context (if I'm wrong, please feel free to correct me). It's an issue I'm still having some difficulty grasping.

A Sinner said...

No, Medieval Studies was sort of an "easy" major so I could enjoy myself at college and work on other facets of my human education (having been quite the overachieving student in gradeschool). All this just comes from thinking and reading stuff online and having conversations with people.