Brought up short by the U.S. Supreme Court’s abortion decision, the Catholic community realizes now that God and country do not always stand together. The myth gone, the government may have lost one of its most stable and politically beneficial allies.
It’s a cliché of Catholic theology that old concepts, irrelevant and near-forgotten, have a way of reasserting their importance at unexpected times. A cliché, a truism somehow more common than true, even a bit self-righteous. Such statements seem out of place in an era of creative, forward-looking theological vision. Or so we thought.
For the Supreme Court decision voiding the anti-abortion laws of Texas and Georgia has, in spite of itself, proved the cliché quite true. The Court’s judgment has managed to transform one of the hoariest, most irrelevant notions of traditional Catholic theology into a star of contemporary thought. And in the process, I suggest, it has also changed the status quo of the American Catholic Church in a fundamental way.
On February 13, 1973, the Administrative Committee of the National Conference of Catholic Bishops issued a pastoral message responding to the Supreme Court. The committee declared that “the Supreme Court...has stated that the unborn child is not a person in the terms of the Fourteenth Amendment. ...This opinion of the Court fails to protect the most basic human right—the right to life. Therefore, we reject this decision of the Court, because, as John XXIII says: ‘if any government does not acknowledge the rights of man or violates them...its orders completely lack juridical force.’”
And as if this were not strong enough, the bishops continue with even more emphatic statements: “We find that this majority opinion of the Court is wrong.... Whenever a conflict arises between the law of God and any human law, we are held to follow God’s law.... No one is obliged to obey any civil law that may require abortion.”
Perhaps it is only because the issue here is abortion, but it seems incredible that the radical tone of these declarations of the bishops has been so blithely overlooked. When before has the hierarchy had the audacity to stand eyeball to eyeball with the highest court in the land and, with not the slightest dissimulation, announce: “No way”? When before has the leadership of the American Church proclaimed: “We shall not serve?”
It all sounds like some children’s story of a far-off land: a beleaguered Church fighting for its life against a hostile government. But it isn’t. The scene is not Moscow or Rio de Janeiro or Johannesburg; it’s Washington. And that is what makes the whole affair so astonishing.
What may be even more astonishing is that the most traditional brand of Catholic theology stands ready to provide the theoretical justification for just such a radical statement. To logically ground the bishops’ action one need not turn to the popular but suspect theologians of the left. One need not depend on the newest twist in the “theology of liberation.” No, when the deed was done, it was good old scholastic theology that explained its correctness. If the bishops’ statement was, indeed, radical, it was an exercise of the “radical right.”
I believe that what the bishops have done is radical. But to appreciate that fact, we must first make a quick survey of the theology that they employed. A little history, as usual, will go a long way toward illuminating our current state of affairs. Scholastic theology, at least since the 12th century, has drawn a distinction between “natural law” and “positive law.” The natural law, of course, is the sum total of those obligations which arise from the very being of man. The natural law requires no legislation: it depends upon no consensus. Just because man is who he is, murder is wrong; that’s all there is to it. And because man always is who he is, there are no exceptions to the natural law, no moments when it doesn’t apply, no situations in which it doesn’t bind.
Not so with positive law. Such laws don’t simply exist; rather they are established by some “positive” act of legislation. They are “placed” (Latin: positae) in existence. The category of positive law was used in the traditional theology to include all those organizational dictates of society that are altogether proper, perfectly appropriate, but not utterly inevitable. Positive laws serve the natural law, concretizing it for a particular group. Positive laws organize society in such a way that it harmonizes with the natural law.
So, to use a standard example, traffic regulations are part of the positive law. Natural law makes clear that automobile drivers must take care not to kill one another on the road. The state comes along and, by an exercise of positive law, facilitates observance of the natural law: the state declares that we shall all drive on the right side of the street. Or again, natural law dictates that man should worship his Creator. The Church, by means of positive law, declares that we shall do it on Sunday.
Positive law, then, serves the natural law, it assists men in their attempts to be faithful to the demands of their own being. But there is another side to this. Namely, to the extent that positive law fails to truly serve the natural law, it is invalid and totally without binding force.
That much is clear. The problem comes when we try to apply this theory, when we try to decide if a particular positive law really serves the natural law. And for centuries theologians struggled with the question of how that decision should be made. There are obvious dangers present if every man is left to his own devices (and whims?) in making that decision. Social chaos could quickly develop. So the question persisted: how should one decide if a positive law obliges?
One school argued that the best way to decide was to consider the legitimacy of the ruling government. If an authority came to power justly, if it was duly authorized to care for the common good, then it had the right to concretize the natural law for the society. Such a government had the right to establish positive laws and to bind the consciences of the citizenry with its decisions. And those decisions, as a consequence, must be presumed to be correct.
Not a bad answer to our question. This response guaranteed some social stability. In an era when political units were rising and falling with disconcerting frequency, such a theory gave a theological assist to the status quo by granting the benefit of the doubt to the actually existing government. Viewed this way, positive law made revolution, as a morally permissible option, almost unthinkable. A government would have to be patently and continually at odds with the common good before one could justly refuse to obey its dictates. Ordinarily, the citizen’s one clear obligation is to cooperate with the development of the state as it now exists—without asking impertinent questions.
This, I say, was not a bad answer to our question. For, among other things, it could be argued that such an approach to positive law played a significant role in the emergence of the strong, relatively permanent states we know today. Such a view helped turn Europe from a cacophony of political mutations into a stable civil structure.
But it was not a perfect answer. And that became painfully clear after the Second World War. For this conception of positive law was cited by many leading Germans as justification for their participation in Nazi policies. After all, the Third Reich was a duly established government; it was even democratically elected. It is not the citizen’s place to evaluate the particular decisions of his government. It is his place to obey. And in any case, to object would be tantamount to revolution, and revolution is clearly immoral.
Thus, another understanding of positive law has, particularly in the last twenty years, become popular. In its essentials it is also an old theory. It can be traced, as a matter of fact, all the way back to Aquinas. But its popularity is relatively recent.
According to this theory, one does not arbitrarily support the decisions of government simply because they are legitimately proclaimed. Rather, one looks to the intrinsic function of positive law. Such laws are to explicitate the natural law; they are actually to serve the true common good of society. To the extent that laws do this, they are binding; to the extent that they do not, they are not binding.
The citizen, consequently, does not blindly obey the laws of his land. Rather, he evaluates the decisions of his government, he measures them against the needs of the common good. And if this individual responsibility runs the risk of social fragmentation, that’s just too bad. For there is simply no alternative to personal judgment in the arena of social and political life.
Interestingly, this latter conception was sometimes seen as more rigorous, not less, than the first. For under the “legitimacy” theory, if a government came to power unjustly (by revolution, for instance) one was obliged to nothing that it legislated. It was an illegitimate ruler, it did not stand in the place of God as the ruler of civil society, and thus it had no right to the citizen’s obedience. Under the “functionalist” theory, however, even an illegitimate government should be obeyed if its laws as a matter of fact functioned in the service of the common good.
Thus, for example, the former view would hold that Cubans have no obligation to obey Castro’s government. The latter view would hold that in those things that benefit the true common good of man, Cuban citizens do have such an obligation.
In a somewhat paradoxical way, then, the functionalist view (the term comes from theologian Josef Fuchs, S.J.) justifies both the Nuremberg trials and recent papal efforts to achieve detente with the Communist bloc. For in both cases it looks, not to how we got to the present, but rather to what the common good actually requires in the real here and now.
This is the theory of positive law. And as I mentioned in the beginning, it has long been viewed as an antiquarian nicety of Catholic theology. Seminarians and college students have long rebelled against its picayune concerns. To them, the fact that it habitually used such examples as traffic laws and Sunday Mass obligation only certified that it was basically an irrelevant and out-dated conception. Or at most, it was a theory which was of use to Catholics in unstable or atheist lands far away. For us it was simply of no use.
Which brings us back to the Supreme Court. The fact of the matter is that the average American Catholic simply did not believe that his government would ever do anything opposed to the common good, to the perennial dictates of the natural law. He bedecked his churches with Old Glory, and symbolized thus his conviction that in the U.S.A. God and country would always stand together. Faith and patriotic obedience, if not exactly the same thing, were at least complementary virtues.
Prominent Catholic spokesmen echoed the toast: “My country, right or wrong.” Many Catholics shouted their support. Some citizens, to be sure, exegeted the oft-quoted statement and found in their exegesis grounds for agreement. There is, after all, a certain sort of loyalty and affection that one should feel for one’s native land not only when it is right but also in the sad moments when it is wrong.
But whether or not it was the original meaning, many also took the statement another way. Rightness and wrongness are small details of political life. This country, my country, is a godly country. In matters of fundamental importance it always has been and always will be right. We live in a nation rooted in the Declaration of Independence, the Constitution and the Bill of Rights. We live in a land that is, from its very foundation, attuned to the natural law and the common good. And praise the Lord for this!
Then came the conscientious objectors. The land gave birth to war protesters, peaceniks and other unsavory types. And beyond their inflammatory rhetoric, these people enunciated an inflammatory and thoroughly unorthodox theory. They declared that the Vietnam War was unjust. It might or might not be legal. But even if it was, it was still unjust. And unjust laws, no matter how legitimately established, are not to be obeyed. One’s conscience comes before the decisions of one’s draft board. If the board does not see fit to validate one’s conscience, then one goes to Canada. And what is more, such actions are not cowardice, they are not ultimately unpatriotic and they certainly do not stand to be heretical.
The really fascinating thing about the whole peace movement is not that many people disagreed with its conclusions. For that sort of disagreement there always has been and always will be room. No, the fascinating thing is that most Catholics, including many bishops, simply did not comprehend the line of argumentation. If Catholics had rejected the protestors’ comparison of Nixon and Hitler as hyperbolic, that would have been understandable and open to honest debate. But many rejected it on the grounds that no analogy was possible, or could be possible, at all. And that’s quite a different matter.
That our government could be guilty of immorality seemed such an outrageous assertion that an individual citizen should take it upon himself to evaluate and pass judgment upon the decisions of Washington seemed so presumptuous as to be utterly unthinkable. The ancient details of positive law theology simply didn’t pertain in our situation. A good Catholic knew that our government was the servant of our God, and that’s all there was to it.
All this, however, was before abortion. All this was in our days of civil innocence. And those days, I suggest, are no more. Positive law does have pertinence to our time and our place. Our government is able to oppose itself to the natural law and the real common good. And as the bishops said on February 13: “Whenever a conflict arises between the law of God and any human law, we are held to follow God’s law.”
Apart from the immediate ramifications of the Supreme Court’s decision, one of its major effects may be an increase of political sophistication that politicians may soon come to rue. For in striking down the laws of Texas and Georgia, the Court has also gone a long way toward striking down one of the most politically beneficial myths of American life. Catholics have, by and large, been among the more patriotic segments of the population. They believed in the government. They believed in the Statue of Liberty, which had been the first sight glimpsed by so many of their parent-immigrants on their arrival in America. They believed that the political order could be implicitly trusted, that it would not let them down. And that belief, to say the least, has been shaken by the Supreme Court decision.
The death of the old naïveté is probably a good thing. For all the beauty of adolescent innocence, most people would agree that growing up is a good thing to do. But I don’t mean to suggest that we ought to celebrate the Supreme Court’s decision. Fetal life is not some plaything to be used by theology any more than it is to be used by the political process. But I do mean to suggest that there may be something still to be gained from this sad state of affairs.
We were naïve. We were foolish. Indeed, we were unfair to the civil order. For in our childish faith we expected that order to do more than it was able. We expected it to mediate in an infallible way the will of God for our lives. We expected it to make clear and certain the moral standards by which we ought to live. We expected the government to guarantee a comfortable meld of “Christian” and “American.” And that it just can’t do.
A peculiarly Catholic sort of civil religion has been a fact of life in the United States for a long time. And it will not die an easy death. Indeed, it is too desirable a commodity to be willingly relinquished. But if the Supreme Court has not killed Catholic civil religion, it has at least struck it a serious blow. I’m sorry, America, but that old, slightly quaint theology of positive law is, indeed, relevant to our situation. God and country may go together. But then again, they may not.
The Court’s abortion decision has not changed everything. But it has changed something. The church and the state may yet bed down together once more. But things will never be quite so cozy again.