sexta-feira, 5 de agosto de 2011

Legal positivism and the New Evangelisation - by Mgr Michel Schooyans

by Mgr Michel Schooyans
Professor Emeritus at the University of Louvain

There are two key notions of human rights. The first of these notions is rooted in the realist tradition; the second in the nominalist tradition. The same declaration of these rights is open to conflicting interpretations.

The realist notion

The rights recognised

In our contemporary age, the realist tradition has benefited from research spearheaded by the phenomenology of perception. Existential phenomenology, as promulgated by Merleau-Ponty for example, must "formulate an experience of the world, a contact with the world which precedes all thinking on the world »[1]. To perceive is to grasp the object itself, not a duplicate of that object. Contemporary realism bows before the real human being and only later develops a thought on that human being. We bow to a reality which our reason can grasp, and which we express in language. We bow to man as a concrete entity, and we recognise that all men have the same rights. In this sense, human rights are universal. They exclude all discrimination. Such rights are expressed in the great Declarations, above all the US Declaration of Independence (1776); Constitution of the United States (1787); Declaration of the Rights and Man and of the Citizen of 1789 in France, and Universal Declaration of Human Rights of 1948.

These rights are inherent in human nature: man is born with them. Even before he/she enters into civil and political society, each human being has fundamental rights. Man has these rights even before they have been written in laws. The rights of a human being to life, freedom of expression, marriage, formation of the family, choice of religion, etc. exist before they have been expressed. The great Declarations record a reality which is acknowledged.

The realist tradition emphasises that man is a being endowed with reason and liberty. Man has in his constitution the capacity to judge and decide, is able freely to assent to what is. As beautifully expressed by Aimé Forest, man is able to "consent to being »[2]. We are able in particular to recognise the reality of others and consent to accept the limits on our freedom, so that others too may exist and be affirmed in their connaturality and difference.

Positive laws

It is not sufficient for human rights to be recognised. If they were simply recognised and declared, human rights would have a theoretical significance only; they would be purely formal. By their very nature, human rights need, even demand, to be translated into written laws, legal rules. This is what is called positive legislation, positive law. Certainly, laws are the subject of juridical pronouncements which differ depending on the traditions of various peoples; these positive legislations can therefore be compared. But they all converge towards the same end: to recognise, promote and protect the fundamental rights inherent in all members of the human family. States do not create these rights. What confers legitimacy on the legal order is respect for natural human rights. The adherence of the various States to these human rights is the best guarantee of peace among nations and justice within nations.

In the realist notion, the rule of law means that the leaders of a State recognise the reality of human rights and strive to ensure that these rights are respected in civil and political society, through legal instruments. Under this same realist tradition, reference is sometimes made to new rights. These are rights which, although held by man by nature, have not yet been clearly or sufficiently expressed.

An indefatigable quest

To recognise human rights is to embark on an indefatigable quest for those rights; it is to admit that this quest envisages an objective which is never fully attained and which, for that very reason, gives rise to advances in positive legislation. This continuous process constitutes genuine progress in as far as, unfolding throughout history, it reveals a better perception of fundamental human rights, and what is common to all men. Yet, as witnessed in recent history, these benefits remain precarious and require constant protection by adequate legal instruments.

Well-known examples illustrate various stages in this progress. It is as a result of a better perception of the equality of man that slavery has been condemned, the status of serfs and workers challenged and that today, discrimination against women is countered, exploitation of the Third World challenged, etc. It has also been concluded, rightly, that, because there is a better perception of these new rights, they should be enshrined in appropriate positive legislations and hence pave the way for further discoveries.

There is therefore a history of the perception of natural human rights. There are cultures which honour natural human rights better than others. The human conscience derives benefit from historical experience, which reveals denials of the rights it strives to remedy by better laws. Yet this very progress demonstrates a need for unfailing vigilance, because regression is always possible. Hence the irreplaceable role of the Judge.

The positivist notion

The science of legal rules

The notion of human rights which emerges in legal positivism derives from the nominalist tradition: beyond words, there is no knowable reality. The prime characteristic of this notion is to concern oneself purely with positive legislation, positive law. According to this notion, the classical major declarations are, in the majority of cases, political declarations, which have, and should have, no impact on positive law.

Reference to man's innate rights is banished. Under positivism, law is the science of legal rules, the science of pronouncements which the legislator records in written laws, codified in legal rules. The appeal to anything beyond positive law is devoid of relevance. Any reference to real men and their innate rights is denounced as falling within the unknowable sphere of metaphysical thought. The latter is firmly dismissed by the science of laws.

This positivist notion of the law is echoed in the positivist notion of science, in particular the physical and chemical sciences, which are concerned purely with phenomena and formal pronouncements, the compatibility of which is assumed. These disciplines do not pay attention to the questions explored by metaphysics. Just as the man of science is concerned purely with phenomena, the jurist should only concern himself with legal rules formulated by the legislator. These legal rules must be as consistent as possible.

The major theoretician of legal positivism, Hans Kelsen (1881-1973), falls within the Kantian tradition[3]. He postulates the supreme legal rule: « The rule must be respected because it is the rule»; « The law must be respected because it is the law». The supreme rule is seen to impose itself as an immediate given, as an axiom. There has ceased to be any human reality to recognise, any rights inherent in every human being. There is no longer any need to consider anything beyond the written law, or refer to the fundamental rights which precede these written laws. In the positivist tradition, the right of all to life, pivotal to the realist tradition, is increasingly under threat from positive laws. Positive law is increasingly dissociated from natural law since the latter, if deemed to exist, would be unknowable and entirely to be discounted.

An example of agnosticism

Legal positivism is hence presented as a form of agnosticism: there is no longer any truth of man or on man, which, by its very existence, imposes itself on reason. Originally, it was up to the individual to decide what was right, in complete autonomy. Relativism and individualism go hand-in-hand. However, if the individual wishes to take the law into his own hands and covets what his neighbour covets, a state of war will, sooner or later, be generated in society.[4] To avoid such a situation, men must submit to the supreme rule, the guarantor of which is the person who finds himself in a dominant position, to the point where his will has the force of law. One thinks of the Princes and other Leviathans of modern times. This force of law can derive from two sources: either men voluntarily surrender their liberty in favour of a leader to whom they submit; or the leader imposes himself on them – through violence or trickery. In both cases, legal rules will have but one source: the will of the Prince. Human rights will therefore proceed purely from the will of the person who, being the strongest, is able to give the force of law to the determinations of his will. According to this notion, men have an interest in entering political society, but will not be safe unless they consent to be slaves[5].

There are therefore two types of positive right and therefore positive laws: the first, inspired by realism; the second, inspired by positivism. In addition, to posit the principle that man has no innate rights is to leave man defenceless in the face of violence which the law has no reason to contain.

Which interpretation of the 1948 Declaration?

Justice, conformity with the law

Currently, the positivist notion of human rights is increasingly supplanting the realist notion which was the hallmark of the 1948 Universal Declaration. We will demonstrate this on the basis of a number of examples.

In the realist notion of human rights, words derive their meaning from the reality they express. Men can talk to one another, deliberate, understand each other because the meaning of words is not the outcome of voluntaristic decisions. The right to life is said to be inherent to all human beings because they are human beings. Here, the legal rule is natural. Justice is determined by the respect due to each man, more precisely to his rights: each man must be rendered his due.

Contrary to the realist notion, in the positivist notion, words cease to refer to realities. The meaning of words in law is dependent on the will of the legislator. The right to life is defined and delimited in rules laid down by the legislator; it is no longer universal. Given that words no longer relate to realities, to rights inherent in the person, their meaning can only be conventional.

The supreme rule postulated by Kelsen is purely formal: The law must be respected because it is the law. However, for this assumption to be more than a dead letter, it is necessary to provide legal rules which ultimately derive their validity from the supreme rule. Here, legal rules appear to be the outcome of a consensual procedure, on completion of which men agree to define the legal rules to be validated by the upholder of fundamental law. The legal rules so validated may however be interpreted at the discretion of the dominant will. Justice is then defined as conformity with the law, whatever it is.

It follows – again under the positivist notion - that human rights, as formulated in the 1948 Declaration, convey the impression of being universal, and are indeed so in the realist perspective, that of those who drafted the 1948 Declaration. But the universality of human rights is at peril if that Declaration is subjected to a positivist interpretation. According to this interpretation, each legislator may assign words the meaning he desires, hence corroborating the false impression of universality[6]. In effect, words such as life, family, marriage, education, etc appear unambiguous - as in the realist interpretation - yet become polysemous and equivocal if subjected to a positivist interpretation. The price of rejection of the anchorage of words in reality is the confusion of a Babel-like language. Rather than unite, such language divides.

Claiming the « new rights »

Relativism, as the characteristic of legal positivism, then gives rise to the claiming of « new rights ». These « new rights » are the result of negotiations among individuals, which must lead to consensual decisions[7]. They are validated by the guarantor of the supreme rule.

The « new rights » include the « right to abortion », « right to unions between persons of the same sex », « right to euthanasia », etc. Yet this claiming of « new rights » can only be honoured at the cost of the instigation of a superior power which, by an act of its will, validates the « new rights » in question. In the final instance, it is the guarantor of the supreme rule who is called upon to decide on the meaning to be ascribed to words, to determine what is just and what is not.

Relativism allows legal positivism to present human rights as conquests of the freedom of individuals. Individuals may negotiate and even claim « rights », which coincide with their desires. Initially, individuals will feel sure they have conquered “« new rights ». But they will soon perceive that this claim cannot be honoured without the inauguration of a superior power on which validation of the « new rights » will depend. This positivist notion of the law hence leads individuals to be deprived of their autonomy, so highly prized. It also exposes States to the deprivation of their sovereignty in as far as, due to the deviation from realism, their particular rights require endorsement in the name of the supreme rule.

A systematic deconstruction

A distortion of meaning

We are currently witnessing a demonstrable attempt at systematic deconstruction of the realist notion of human rights. The reality of the human being since conception is not recognised. The legislator reserves the right to define the moment at which there is a human being. The same applies to the family. The family is no longer a natural institution. This distortion of the meaning of the 1948 Universal Declaration, this positivist interpretation of the Declaration enables the UNO, and also the European Union, to present as guarantors of the "supreme rule". Validation of the particular rights of individuals and States is dependent on one and the other. For positivists, the 1948 Declaration is no longer admissible because it falls within the realist tradition, which originally inspired it. The wording of the Declaration is now viewed through a filter of interpretation, which leaves the meaning of words entirely volatile. This meaning is to be fixed, or altered, purely by those who have the power to impose their will.

In brief, the original meaning of the 1948 Universal Declaration has been forcefully overthrown, which means that verbal engineering today ascribes to words a meaning contrary to that ascribed yesterday.

We will return to a few examples.

The right to found a traditional, heterosexual and monogamous family is now accompanied by a catalogue of « new rights », in which one encounters blended, reconstituted, single-parent families, etc. The « new rights » extend to various « new models » of the family. This enervates all natural solidarities.

The word marriage, reserved for the commitment of two people of a different sex, is currently used to designate the "right" to homosexual or lesbian unions, even homosexual parenthood. Such different unions may be accompanied by the "right" to adopt children or the "right" to repudiate a partner.

In the realist tradition, the word motherhood means, first of all, the biological process by which a woman welcomes a new human being. Today, the word refers to the « new rights » which legalise assisted-motherhood techniques, in vitro fertilisation, pregnancy to order, etc. Rights to « risk-free motherhood » and « reproductive health » include in particular the right to abortion.

By the same token, the word fatherhood traditionally refers to the biological process by which a man, united to his wife, engenders a new human being. But today, in accordance with the « new rights », fatherhood can be exercised furtively, even anonymously. The biological father merely provides his sperm and undertakes to step aside in favour of the father who brings up the child.

The word health refers to the condition one is in when the human body is functioning well. But we have witnessed the emergence of « new rights » adapted to the « new paradigm of health ». According to the latter, priority is henceforth to be accorded to the health of the social body, and no longer to the health of individuals.

From the onset of adolescence, children have the « right » to have recourse to contraception, even abortion, without the knowledge of their parents. Parents are therefore dispossessed of one of their essential responsibilities in the upbringing of their children.

Respect for life, in particular a suffering or declining life, also forms part of the realist tradition. It is in the name of this tradition that crimes against humanity, generally declared indefeasible, have been condemned. Now, respect for life has become flexible and we are witnessing the emergence of « new human rights », which legalise euthanasia, previously condemned at Nuremberg, and abortion.

On the human body, it has traditionally been affirmed that it is « inalienable ». The human body cannot be the subject of a sale or an agreement. The human body cannot be instrumentalised, used for experimental purposes. Now, « new rights » translate into practices such as test-tube babies, designer babies, surrogate mothers, and abortion itself.

In short, the culture of death is the poisonous fruit of legal positivism[8].

In its habitual meaning, the word gender refers to sexual differentiation, innate anatomical, physiological and psychological differences between a man and a woman, between Mars and Venus. Now, in the name of the « new rights », each person is able to choose, even change, his/her « sexual orientation», « gender ». The differences in the roles of a man and woman are presented as purely cultural; they have - we are assured - no natural foundation. A new culture is emerging which will abolish all traces of an era in which women were oppressed by men and crushed by pregnancies.

To recap, reality is relegated in parenthesis and words have the meaning the speaker wishes to give them. Hence, a new language arises where words such as gender, family, marriage, motherhood, fatherhood, abortion, contraception, etc have the meaning assigned by the speaker, leaving aside any reference to the real. Ultimately, a new society may be constructed on the basis of these « new rights »[9].

What rule of law?

We turn to the final example, on which we have already touched: the question of the rule of law, l’État de droit. This expression is traditionally taken to mean that, in a State, the governing and the governed should recognise and respect the rights vested in man by nature: the right to life, to marry, to found a family, express oneself, associate, etc. Public authorities, in particular, are required to establish legal rules, positive laws, which give concrete form to the rights vested naturally in man.

However, the expression « rule of law » can also be used in a positivist sense. This expression then means that, in a given State, there is a right, there are laws. From this perspective, the law is to be respected because it is the law, without any reference whatsoever to the rights vested in man by nature. Laws are then the expression of the will of the legislator. This is what Kelsen declared with reference to the Nazi and Stalinist States:

« In terms of judicial science, the law established by the Nazi regime is the law. We may deplore this, but we cannot deny it is a law. The law of the Soviet Union is law! We may abhor this, as we hold a poisonous snake in horror, but we cannot deny it exists, which means it is valid. »[10]

This positivist notion of the law is still to be found in all legal systems supported by totalitarianisms of every kind, declared or rampant. It is in the process of being imposed in international relations. It is placing religious liberty at risk. While under the realist notion, the rule of law is there to serve human rights, under the positivist notion of the rule of law, the law is exposed to becoming the ultimate weapon of dictatorship and tyranny.

The hand extended

The neo-positivist temptation

The influence of legal positivism today extends to certain catholic moralists, some of whom are even developing an adulterated notion of Christian morality. The basic error of such moralists is to abandon the realist notion of man and the rights naturally attaching to man. This tendency is especially perceptible in discussions on the issue of human life. Many bioethicists fail to accord sufficient significance to fundamental morality. We frequently see schizophrenic behaviour in certain, allegedly Catholic, politicians, who declare for example: « Personally, I'm against abortion, but as a Member of Parliament, I'm in favour of its legalisation ».

The position with regard to bioethics is the same as the position with regard to law. When inspired by the realist notion, bioethics considers the concrete human being and various bodies of knowledge acquired on that concrete human being. Bioethics views man as a person, open to relations with others, naturally sociable. Natural morality hence draws on a number of different scientific disciplines to recall the fact that neither man nor woman can do as they like with their body, and that the body itself imposes limits on man's freedom. Yes, this man of flesh and bone is truly loved by God, who reveals his full dignity in the Incarnation of his Son. When condemning sodomy, Scripture is certainly referring to God's plan on human sexuality, but is also drawing on an observation of the facts. Christian morality incorporates these experiential conclusions, as it incorporates the conclusions of philosophical anthropology. Although benefitting from the perspective proper to the Christian tradition, these conclusions not infrequently predate the Gospels. At the dawn of the New Alliance, how can we fail to think of the martyrdom of St John the Baptist, who told Herod he had no right to keep his brother's wife[11]?

When of positivist inspiration, bioethics holds that man is an individual, turned in on himself and primarily alert to his own interests, his pleasures, what is useful to him. This form of bioethics flourishes on ethics committees; this is a virtual forum where the most diverse opinions confront one another in a frantic search for an improbable consensus. The aim of the discussion is not to know the real, because it is said to be unknowable; it is to discuss. This is an elegant way of applying epoché, or suspension of judgement. One discusses for discussion’s sake, like the sophists of old and the sceptics. This form of bioethics may present itself as Christian, but its rationale underplays or dismisses as definitely not interesting the philosophical question of the reality and dignity of man, and the existential relationship of man to the creator. What counts is dialogue, or rather negotiation. It is necessary to decide on what is permitted or defended today, yet the door should be left open to different decisions at a later date, in as far as any moralist is entitled to express an opinion on what he regards as admissible or otherwise. Hence, a return to relativism and casuistry. Reality is then emptied of itself and ceases to be a normative discipline. Morality pronounces on the basis of calculations: on utility, pleasure, the risk posed by a given type of behaviour in a given situation.

Complete autonomy

The profound crisis currently experienced by Christian morality thus arises from a rejection, frequently arbitrary, of reference to natural law and human rights which it is open to reason to discover. It also arises from a frequent disregard, by certain Christians, of the rootedness of this Christian morality in a theology of creation and the incarnation. Relativism, scepticism and agnosticism are in the process of corrupting the foundations of Christian morality. It follows that theologians prominent in the media find themselves in alliance with the proponents of legal positivism. For such theologians, there is no act which is truly good, and no act which is truly bad. The only morality is situational morality. It is left to the individual to decide on the fundamental intention which will guide his actions.

Many Christian bioethicists accept the hand extended to them by legal positivism in the matter of human rights. They consider that, in morality, everything can be discussed, challenged, deconstructed and reconstructed. Hence the support given by these theologians to the « new human rights», adopted in positivist circles. This casuist interpretation of Christian morality considers that individuals are entirely autonomous and must « follow their conscience » in complete freedom. There is no longer any moral rule; there is no longer any fundamental morality. Moral action is to be based on a free individual examination of conscience. It is self-evident that this rejection, by Christians, of natural human rights serves to embolden the actions of the militants of the culture of death.

Fuelling the confusion?

The Magisterium and arbitration

Passengers in the boat of St Peter are at times profoundly influenced by this trend. Once again, the use of bioethics is significant. Meetings attended by prominent ecclesiastical authorities have become forums where the goal is to arrive at a consensus. This sometimes occurs at ecumenical meetings where it is seen as necessary to make concessions, gloss over differences, to arrive at a common denominator at any price. Spokespersons and other unofficial organs may muddy the waters still further.

A typical example is provided by the interminable discussions on the condom. Out of fear, perhaps, of looking the reality in the face, disturbing data, facts, are systematically concealed or disparaged and replaced by pronouncements convenient to those proclaiming them. The supreme Magisterium is then called upon to rescue the situation and engage in arbitration, which exposes it to all kinds of pressures.

Where does this trend lead?

It deprives the Magisterium of that for which it was instituted.

How can this be?

Under the influence of the positivist trend, the Magisterium is no longer required to expound and elaborate on the Church's doctrine, of which it is custodian and upholder. It is no longer be called upon to throw light on the reference of the Church’s doctrine to the truth. Because the Magisterium is now expected, in the Church, to be the guarantor of the consensus, negotiations and arbitration, the Magisterium would be required to express the « new morality ». Is the Magisterium now not expected to be the guarantor, not of a truth, but of ethical pronouncements to be endorsed in accordance with the supreme moral rule: « A morality is necessary»? This « new morality » will be pronounced by bioethicists and its rules will be subject to validation by the supreme Magisterium.

To achieve this aim, the declarations of the Magisterium are flattened, in the sense that all declarations have the same weight, are trivialised and always open to challenge. Whether it is a matter of conciliar declarations, encyclicals, synodical exhortations, an interview during the journey, an unfortunate phrase in a speech or collection of interviews: all texts have the same weight and all are reversible. To compound the situation, inconsistencies between various translations, at times botched, of pontifical texts, add a jubilatory note to the muddle. This offers a feast to editors and readers! Equally, those in a position of sufficient strength to do so attempt to present themselves as authentic interpreters of magisterial declarations, even to the extent of hawking new moral rules.

The authority of the supreme Magisterium runs the risk of being wrecked when there is no longer discernment of the truth to be received or conveyed. This method of proceeding places the Pope at odds with himself and with his predecessors. For that matter, it is argued, the Pope himself does not hesitate to invite his readers to discuss his positions.

Protecting the Pope

Here is what Benedict XVI has written in his splendid Jesus of Nazareth[12] :

« Clearly, I have no need to make it explicit that this book is in no way an act of the Magisterium, purely the expression of my personal search for « the face of the Lord » (cf. Ps 26 [27], 8). Therefore anyone is free to contradict me. I simply ask my readers to accord me the credit of goodwill, without which comprehension is not possible ».

It is worth drawing attention to the goodwill of the Pope himself, who has the delicacy to write that his scientific works, even those signed during his Pontificate, are not acts of the Magisterium. This is precisely the inverse of the message that certain of his members of staff wish to present, by insinuating that it is sufficient for a declaration to proceed from the will of the Pope for it to have magisterial weight. It is therefore elementary to recall that everything the Pope says or writes does not call for the same level of adherence. Certain pontifical documents attributed to the Pope call for criticism in order to protect the Pope himself, and the Magisterium, from possible inopportune initiatives from staff members exceeding their mandate.

The Church and social re-engineering

Through this slide towards a positivist interpretation of its authority and magisterial declarations, the Church finds itself objectively associated with the plan of social re-engineering instigated by the UNO and EU. The Church is to be hijacked, that is won over to the plan of world governance under the aegis of a positivist international law, itself applied by supranational courts.

If not annexed by consent, intimidation or betrayal (one thinks of Henry VIII), the Church is to be destroyed, not because it has a morality, but because it has a morality which disturbs because it is profoundly realist. The foundation of this morality is the passion, death and resurrection of the son of God, who came on Earth to invite all men to become children of God. This is the key event in human history, and it is to this event that the Apostles were the first to bear witness. Those whose faith had vacillated prior to the betrayal, those who had not believed in his resurrection, as testified to by the holy women, then in fact, inspired by the Holy Spirit, began to proclaim that he is alive. They confronted the powers of evil to announce, even unto martyrdom, this good news. This is the rock on which the entire history of the Church is based: the Apostles saw; they recognised; they heard, they touched. Here is the truth which the Magisterium has to receive and pass on.

This is why the Church endorses the efforts of so many generations to protect man and his innate rights. The Church recognises and welcomes the labour of generations of politicians, legislators, jurists of the standing of Cicero, to procure for human societies a legislation which protects and promotes these rights. More fundamentally still, the Church invites all men to return to the reality of man and rise up with courage against the ascendancy of the culture of death.

Positivism and the culture of death

For all jurists and for all moralists, Catholic or otherwise, adherence to a positivist notion of the law and morality is tantamount to the restoration of a contemporary form of manicheism. According to this notion, it is incumbent on a category of men, the enlightened, to define what is good or evil in the world, and to reflect this dichotomy through judicial institutions permeating the social fabric. However, despite evil and sin, the Church is called upon to imitate God’s view of man and the world: the creator saw that what he had done was good[13]. The Church must invite all men to marvel at the beauty of the world, to choose life, to rediscover the fact that this world has been created for man, and that man is the caretaker of the first revelation that is the created world.

The sad thing about legal positivism is that, by reason of its agnosticism, it leaves the door wide open to a self-engulfing culture of death. A culture of death which began by decreeing the death of a self-styled God who became jealous of his creature. A culture of death which credits man with the power to deify himself and give himself rights. Excuse me! A culture in the name of which men have decreed the death of the son of God, of the Innocent par excellence and of those who are in his image. A culture of death which, according to some demographers, could lead to the extinction of the human species …

It emerges from the above that the confrontation between the realist and positivist notions of human rights has become the crucial question in the world today, in particular within the leading international organisations. This question poses a special challenge to representatives of the positivist tradition. According to this tradition in effect, « a law is necessary », and « the law must be respected ». Justice is therefore purely procedural: it ratifies a consensual decision achieved as a result of a « fair-play » discussion. Laws conceived through this process have no basis in a recognised reality. Whence the creation of a new positivist international law in the service of world governance. Yet how is it possible to fail to recognise that, with the rise of legal positivism, the « right » to give death has become the supreme right?

What is equally troubling is that this positivism has been welcomed by numerous Christian moralists, in particular among those who present themselves as bioethicists. As can be observed in many ad hoc committees, bioethicists, desirous of arriving at a consensual decision and prepared to endorse that decision, imitate their positivist jurist colleagues and decree that beyond the consensual decision, there is nothing to be taken into consideration. Anything which is beyond the supreme moral rule – « A moral rule is necessary » – belongs to the obscure world of metaphysics. Entirely logically, this rejection of metaphysics and the related field of anthropology, are accompanied by a rejection of any fundamental morality which concerns itself, for example, with the relationships between conscience, truth, liberty.

Finally, neither legal positivism, nor a certain « Christian morality » at times the clone of the latter, can evade the question of knowing who is speaking, who is uttering legal and moral pronouncements, who, in the final instance, is validating the particular rules. These various pronouncements always conceal real men, parties, groups, organised to a greater or lesser extent, hidden societies prepared to deconstruct the world and anxious to reconstruct it in line with decisions proceeding from their will.

Shaken from the outside by the forces of evil and from the inside by convulsions whose magnitude is downplayed, the Church, today as yesterday, has to breathe life into the members, revive the Word of love, rekindle the fire which the Lord entrusted to it to inflame the world. If Peter and Paul were alive today, they would probably be accused of fundamentalism. However it is on them, and their successors, that the future New Evangelisation depends.

Mgr Michel Schooyans is Emeritus Professor at the Catholic University of Louvain, where he has taught political philosophy, contemporary ideologies and the ethics of demographic politics. He has also taught for ten years at the Catholic University of São Paulo. A philosopher and theologian, Michel Schooyans is a member of the Pontifical Academy of Social Sciences, Pontifical Academy for Life and Mexican Academy for Bioethics. He is an adviser to the Pontifical Council for the Family.

Louvain-la-Neuve, July 2011.

Contact :

[1] Cf. Maurice Merleau-Ponty, Sens et non-sens [Meaning and non-meaning], Paris, Gallimard, 1948; new edition of 2001. See pages 54 et seq.

[2] Cf. Aimé Forest, Du consentement à l’être, [Consent to being], Aubier, 1936.

[3] The most celebrated work of Hans Kelsen is his Théorie pure du droit [The pure theory of law ] [1962], Paris, LGDJ, 1999. On Kelsen, see our study, La face cachée de l’ONU [The hidden face of the UNO], Paris, Le Sarment, 2000; see pages 133-172.

[4] See the work of René Girard, in particular Des choses cachées depuis la fondation du monde [Things Hidden since the Foundation of the World], Paris, Bernard Grasset, 1978.

[5] Étienne de la Boétie, Le discours de la servitude volontaire [The discourse of voluntary servitude], Paris, Payot, 1976.

[6] The ethics of responsibility, as expounded by Max Weber, serve to strengthen further this positivist interpretation of human rights. See Max Weber, Le Savant et le Politique, [The Scholar and the Politician] Paris, Le Monde on 10/18, 1959 ; cf. pages 172-175.

[7] See in this regard John Rawls, A Theory of Justice, Oxford University Press, 1972; various new editions.

[8] See Rémi Brague, Les ancres dans le ciel. L’infrastructure métaphysique [Anchors in the sky. The metaphysical infrastructure], Paris, Edition du Seuil, 2011.

[9] For a discussion on « constructivism », see in particular the work of Ian Hacking, Entre science et réalité : La construction sociale de quoi ? [Between science and reality: the social construction of what?], Paris, la Découverte edition, 2001.

[10] Hans Kelsen, Das Naturrecht in der politischen Theorie, Vienne, 1963, page 148; this is a presentation to the Congress of the International Research Centre relating to the fundamental problems of science. We reproduce the text as cited by Julien Freund, L’essence du politique [The essence of politics], Paris, Sirey edition, 1965, pages 723 et seq. Some passages in Théorie pure [Pure theory] can be said to pave the way for this assertion. See also note 3 above.

[11] Mt 14, 4.

[12] See Joseph Ratzinger - Benedict XVI, Jésus de Nazareth, Paris, Flammarion edition, 2007; page 19.

[13] Gn 1, 10. 12. 18. 21. 25 ; cf. 2, 18.