Adress to the Law School of Strathmore University - 27. 08. 2012
Introduction
It is a pleasure for me to speak to the Law School of Strathmore
University. I express my deepest gratitude to Dr. Luis Franceschi, Dean
of the Law School, for the invitation to speak to you today, and I thank
all those who have made it possible for me to be with you. It is my
hope that my presence will confirm, in some small way, the fundamental
service of higher education which Strathmore University has been
faithfully providing since its beginnings in 1961, and, in particular,
the critical service of the Law School.
The topic which I wish to address pertains to the law as servant of
justice and truth. It may seem a somewhat unusual topic to address at a
university which specializes in the study of commerce and information
technology. In fact, it is a most appropriate subject for me to discuss
with you who are devoted to the study of law and with the whole student
body of the University, for, no matter what may be the field of our
studies and professional work, all of us are called to live in society
in a right and just manner, in order that the good of all may be
safeguarded and fostered.
In speaking about the law, I must first acknowledge the contemporary
fragility of the rule of law, upon which any stable form of society and
government depends. Such fragility seems to be owed, in good part, to a
profound confusion regarding the rule of law and its foundations. For
that reason, I think it important for us to reflect upon the fundamental
question of the law’s service of truth and justice.[i]
Political Life, Virtue and Law
Aristotle’s reflection on the political life and his preference for
the republic as a form of government help us to understand the
foundational importance of the rule of law. Commenting on Aristotle’s
reasons for favoring a republican form of government, combining good
features of both oligarchy and democracy, Monsignor Robert Sokolowski,
renowned professor of the School of Philosophy at The Catholic
University of America in Washington, D.C., underlines the essential
relationship between a stable political life and the respect for the
norm of law. He writes:
In a republic, a large middle class – middle in both an economic and
an ethical sense – is established between the rich and the poor, and the
laws and not men rule, and they do so for the benefit of the whole
city, not for any particular part. To live this way is a great human
accomplishment. It is a truly exalted exercise of reason for citizens to
allow the laws to rule, to have the strength of reason and character to
subordinate themselves to the law, which they allow to rule for the
benefit of the whole. Not all people have the civic habits and public
vision to let the laws and not their own partisan interests rule over
the whole; not all people are immediately capable of being citizens.[ii]
The stability of any society or government depends upon the education
of the people in the civic virtues which respect the rule of law for
the good of all.
If democracy, for example, is “government of the people, by the
people, for the people,” as Abraham Lincoln described the United States
government during the time of the great struggle to eliminate the evil
of slavery, it cannot be reduced to the rule of the majority.[iii] While
the rule of the majority can be qualified, according to a literal
understanding, as government “by the people,” it may well not be
government “of the people” and “for the people.” In other words, the
majority of the people may lose respect for the rule of law in its
essential relationship to the common good. Then, the majority aligns
itself with partisan interests and supports laws which deny the
recognition of fundamental rights to a certain class of people, for
example, a law denying to the members of a certain class the right to
life, because they are seen to be a hindrance to the pursuit of the
individual interests of those in power. Government, in that case, cannot
be said to be “of the people” and “for the people.”
Pope Benedict XVI addressed the question of the foundations of law in
his address to the Bundestag during his Pastoral Visit to Germany in
September of 2011. Taking leave from the story of the young King Solomon
on his accession to the throne, he recalled to political leaders the
teaching of the Holy Scriptures regarding the work of politics. God
asked King Solomon what request he wished to make as he began to rule
God’s holy people. The Holy Father commented:
What will the young ruler ask for at this important moment? Success –
wealth – long life – destruction of his enemies? He chooses none of
these things. Instead, he asks for a listening heart so that he may
govern God’s people, and discern between good and evil (cf. 1 Kg 3:9).[iv]
The story of King Solomon, as Pope Benedict XVI observed, teaches
what must be the end of political activity and, therefore, of
government. He declared: “Politics must be a striving for justice, and
hence it has to establish the fundamental preconditions for peace…. To
serve right and to fight against the dominion of wrong is and remains
the fundamental task of the politician.”[v]
Pope Benedict XVI then asked how we know the good and
right which the political order and specifically the law is to safeguard
and promote. While he acknowledged that in many matters “the support of
the majority can serve as a sufficient criterion,”[vi] he observed that
such a principle is not sufficient “for the fundamental issues of law,
in which the dignity of man and of humanity is at stake.”[vii] Regarding
the very foundations of the life of society, positive civil law must
respect “nature and reason as the true sources of law.”[viii] In other
words, one must have recourse to the natural moral law which God has
inscribed in every human heart.
Referring to a text of Saint Paul’s Letter to the Romans regarding
the natural moral law and its primary witness, the conscience, Pope
Benedict XVI declared: “Here we see the two fundamental concepts of
nature and conscience, where conscience is nothing other than Solomon’s
listening heart, reason that is open to the language of being.”[ix]
Further illustrating the sources of law in nature and reason by making
reference to the popular interest in ecology as a means of respecting
nature, he observed:
Yet I would like to underline a point that seems to me to be
neglected, today as in the past: there is also an ecology of man. Man
too has a nature that he must respect and that he cannot manipulate at
will. Man is not merely self-creating freedom. Man does not create
himself. He is intellect and will, but he is also nature, and his will
is rightly ordered if he respects nature, listens to it and accepts
himself for who he is, as one who did not create himself. In this way,
and in no other, is true human freedom fulfilled.[x]
Reflecting upon European culture which developed “from the encounter
between Jerusalem, Athens and Rome -- from Israel’s divine faith, the
philosophical reason of the Greeks and Roman legal thought,”[xi] he,
therefore, concluded: “In the awareness of man’s responsibility before
God and in the acknowledgment of the inviolable dignity of every single
human person, it [European culture] has established criteria of law: it
is these criteria that we are called to defend at this moment in our
history.”[xii] While Pope Benedict XVI’s reflection is inspired by a
concern for the state of law in the European culture, his conclusions
regarding the foundations of law and, therefore, of order in society are
clearly universal in application.
Order in Society and the Common Good
If any form of government is to serve a community or nation, society
must recognize a certain order which permits the individual to pursue
his own good, while, at the same time, respecting the good of others who
form a community with him. The good is defined by the order found in
the nature of persons and things, by which the same persons and things
are directed to objective ends. In truth, the individual must understand
that his own good cannot be served, while the good of others and the
order of creation are violated. The individual cannot achieve his proper
end and, therefore, happiness, apart from the respect of the proper end
and ultimate happiness of his neighbor, and the proper end of the
things with which he interacts. Government is, otherwise, reduced to
the tyranny of whatever group is able to prevail by winning the support
of a majority.
Without the recognition of the common good, to which the individual
good is essentially related and which it serves, society breaks down and
a government is soon beset by the violence and destruction which is the
inevitable fruit of unbridled individualism and self-pursuit. The
Second Vatican Ecumenical Council described the common good precisely in
the context of the formation of a political community:
Individuals, families, and the various groups which make up the civil
community, are aware of their inability to achieve a truly human life
by their own unaided efforts; they see the need of a wider community in
which each one will make a specific contribution to an even broader
implementation of the common good. For this reason, they set up various
forms of political communities. The political community, then, exists
for the common good: this is its full justification and meaning and the
source of its specific and basic right to exist. The common good
embraces the sum total of all those conditions of social life which
enable individuals, families, and organizations to achieve complete and
efficacious fulfillment.[xiii]
The English word, fulfillment, translates the original Latin word, perfectio.
Fulfillment does not signify some self-defined condition but rather the
perfection of the individual or group, according to man’s proper nature
and end.
The laws of a democratic nation, therefore, are to be ordered to the
common good, which, one hopes, will coincide with the will of the
majority, but which will, in any case, not only be laws “by the people”
but also laws “of the people” and “for the people.” The Second Vatican
Ecumenical Council also taught the necessary relationship of the legal
and juridical order of a society with the common good and, therefore,
the moral order. It declared:
It follows that political authority, either within the political
community as such or through organizations representing the state, must
be exercised within the limits of the moral order and directed toward
the common good (understood in the dynamic sense of the term) according
to the juridical order legitimately established or due to be
established. Citizens, then, are bound in conscience to obey.
Accordingly, the responsibility, the dignity, and the importance of
those who govern is clear.[xiv]
The objectivity of the common good, as it is discovered by right
reason in the natural order, determines the good order of a nation. Laws
which safeguard the common good rest on the reality of the nature and
end of the persons and of the things whom or which they govern. It is
essential that citizens be educated to understand the relationship
between the political order and the common good, in order that they obey
the laws. It is essential that lawmakers and servants of justice
understand the meaning of law for the citizens as individuals and as a
community.
In his Encyclical Letter Caritas in Veritate,
Pope Benedict XVI takes up the question of the common good which, in his
words, “is sought not for its own sake, but for the people who belong
to the social community and who can only really and effectively pursue
their good within it.”[xv] Dedication to the common good, as Pope
Benedict XVI makes clear, is an obligation imposed by both justice and
charity. He concludes: “The more we strive to secure a common good
corresponding to the real needs of our neighbours, the more effectively
we love them.”[xvi]
Law and Metaphysics
The realism of laws, their foundation upon the objective nature and
end of things, has been, for some time, severely questioned or rejected
by a positivist and utilitarian philosophy. Pope Benedict XVI succinctly
describes the situation in his speech to the Bundestag in September of
2011. Speaking about the contemporary banning of the discussion of the
natural moral law in public discourse, he declared:
Fundamentally it is because of the idea that an unbridgeable gulf
exists between “is” and “ought”. An “ought” can never follow from an
“is”, because the two are situated on completely different planes. The
reason for this is that in the meantime, the positivist understanding of
nature has come to be almost universally accepted…. A positivist
conception of nature as purely functional, as the natural sciences
consider it to be, is incapable of producing any bridge to ethics and
law, but once again yields only functional answers.[xvii]
Clearly, the positivist view divorces the law from its metaphysical foundations.
Such a view also clearly excludes from reason anything which is not
demonstrable according to the positivist criteria. Pope Benedict XVI,
therefore concluded:
Anything that is not verifiable or falsifiable, according to this
understanding, does not belong to realm of reason strictly understood.
Hence ethics and religion must be assigned to the subjective field, and
they remain extraneous to the realm of reason in the strict sense of the
word. Where positivist reason dominates the field to the exclusion of
all else – and that is broadly the case in our public mindset – then the
classical sources of knowledge for ethics and law are excluded.[xviii]
Father Edward J. Richard, Missionary of La Salette and distinguished
moral theologian, in his article published in two parts, “Law and
Morality: Taking a Theoretical Break from the Norm,” describes the
philosophical underpinnings of the theory of legal positivism, sometimes
also called legal realism.[xix] At the same time, he examines a
parallel development among certain Catholic moral theologians who follow
a moral theory which is called consequentialism or proportionalism.
The moral theory in question judges the goodness of an act, according
to an intended good consequence, even if the means of achieving the
intended good is evil in itself. Both the legal theory and the moral
theory are rooted in an instrumentalist view of the world. Richard
comments:
With norms as means to ends, the legal or moral
outcome can never be indicated by the norm itself. In other words,
acting contrary to a norm is not in itself to be considered morally or
legally wrong. In both the legal theory and the moral theory presented,
the rule or norm is considered a guide. One must consider the relevant
circumstances, including the purposes and ends of the rules and the
actions in question, before the moral or legal determination is reached.
Competing values or interests at the root of the formulation of the
rule may, in a given case, give rise to a conflict. Only when this
conflict is resolved in light of the relevant circumstances and possible
outcomes is the legality or morality of the act decided.[xx]
The parallel development among some Catholic moral theologians has
added to the confusion regarding the nature of the law and its service
of the common good. Moral theory, distorted and betrayed by the
consequentialist or proportionalist thesis, is not in a position to
carry out its native service of pointing to the truth about the law and,
in fact, participates in the deadly confusion of legal positivism.
Pope Benedict XVI made reference to the grievous damage
done by such thinking in his Christmas Address to the Roman Curia in
2010. Making reference to the grave evils of our times, for example,
paedophilia, child pornography, and the abuse of drugs, he commented:
No pleasure is ever enough, and the excess of deceiving intoxication
becomes a violence that tears whole regions apart – and all this in the
name of a fatal misunderstanding of freedom which actually undermines
man’s freedom and ultimately destroys it.[xxi]
He observed that, in order to overcome such evils, their “ideological foundations,” “a fundamental perversion of the concept of ethos,” must be uncovered.[xxii]
He then provided a description of the ideological foundations of the moral evils of our time with these words:
It was maintained – even within the realm of Catholic theology – that
there is no such thing as evil in itself or good in itself. There is
only a “better than” and a “worse than”. Nothing is good or bad in
itself. Everything depends on the circumstances and on the end in view.
Anything can be good or also bad, depending upon purposes and
circumstances. Morality is replaced by a calculus of consequences, and
in the process it ceases to exist.[xxiii]
Such thinking is clearly contrary to the moral thinking of the Church
which holds that certain actions are good in themselves, intrinsically
good, and certain actions are evil in themselves, intrinsically
evil.[xxiv] The disastrous effect of such profoundly erroneous thinking
upon the concept of law is evident.
Blessed Pope John Paul II, in his Encyclical Letter Veritatis splendor,
refuting the serious errors of consequentialism or proportionalism,
noted the importance of sound moral teaching for the political order. He
recalled the reason for the Church’s insistence upon the objective
moral order, when he wrote:
The Church’s firmness in defending the universal and unchanging moral
norms is not demeaning at all. Its only purpose is to serve man’s true
freedom. Because there can be no freedom apart from or in opposition to
the truth, the categorical – unyielding and uncompromising – defense of
the absolutely essential demands of man’s personal dignity must be
considered the way and the condition for the very existence of
freedom.[xxv]
The recognition of an objective moral order in law is, therefore,
necessary, if freedom is to be served. The Church’s clarity in teaching
the moral truth and in refuting moral error is critical to the sound
political order. The Church’s moral teaching forms the character of the
citizens who are her faithful and also of other men of good will who
recognize the truth of her teaching, in accord with the common good. On
the other hand, moralists whose theories do not correctly account for
universal and unchanging moral norms undermine human freedom in the
political order.
Pope John Paul II went on to reflect upon the danger of “a
totalitarian conception of the world” which democracies in the West have
deplored in governments of Marxist inspiration, while at the same time
they deny “the fundamental rights of the human person” and absorb “the
religious yearnings which arise in the heart of every human being” into
politics.[xxvi] He observed:
This is the risk of an alliance between democracy and ethical
relativism, which would remove any sure moral reference from political
and social life, and, on a deeper level, make the acknowledgment of
truth impossible.[xxvii]
Pope John Paul II then quoted a telling declaration from his Encyclical Letter Centesimus annus: “As history demonstrates, a democracy without principles easily turns into open or thinly disguised totalitarianism.”[xxviii]
The wisdom of Blessed Pope John Paul II’s caution is sadly verified,
for example, in the legal system of the United States which,
uncritically accepting the positivist legal doctrine, has placed the
foundation of the laws upon the shifting sands of relativism. One
example of its application will show that it is not simply a question of
theoretical considerations. In a decision of the United States Supreme
Court, in Planned Parenthood of Southeastern Pennsylvania v. Casey, given on June 29, 1992, the majority opinion declared:
At the heart of liberty is the right to define one’s own concept of
existence, of meaning, of the universe, and of the mystery of human
life.[xxix]
Such language uncovers an understanding of the law which is totally
divorced from any objective reality, any metaphysical principle.
According to the decision, the law and its application must respect the
individual’s “concept” of the world and of human life. The language of
the decision condones a form of individualism and of pursuit of
self-interest which is truly totalitarian. Pope John Paul II’s
clarification of the moral truth to be taught in the Church and his
correction of consequentialism and proportionalism are most timely also
for the world of politics.
I note that the term, values, which is commonly used today in the
discussion of the relationship between morality and law, can be
problematic, for it comes from the economic world and the relative
assessment of the worth of things. I prefer the word, goods or virtues.
In other words, values can change, according to human assessment, while
goods or virtues, inherent in the God-given nature and end of persons
and things, endure.
Law in Relationship to Truth and Justice
What makes law true and just, that is, in conformity with the
God-given nature of persons and things, and their proper ends? The
perennial answer to this critical question is the natural moral law. The
natural law establishes the first and evident principles which
guarantee the realism and, therefore, the justice of laws.
Law is more than the command of the sovereign or the will of the
majority. It has its foundation in the unchanging truth about ourselves
and our world, which is safeguarded by the natural moral law written by
God upon every human heart. The natural moral law alone gives positive
law the deep and stable foundation which it requires and which can truly
bind individuals and communities.
Wolfgang Waldstein has shown that knowledge of the law of nature or
the natural law as the foundation of the legal order is evident in the
earliest known legal documents. He concludes: “As far back as we have
sources concerning legal problems we find the clear awareness of the
fact that man finds himself in a legal order not produced by man
himself, but being part of the creation of the world.”[xxx] Waldstein,
citing the ancient sources, for example, Cicero, refutes the false claim
that the concept of the natural law rests upon the so-called
“naturalistic fallacy,” showing that the claim “departs from the
positivistic presupposition that nature is only material reality.”[xxxi]
Reflecting on the results of the false claim, advanced not only by
legal theorists but also by certain moral theologians, Waldstein quotes a
passage from Pope John Paul II’s Encyclical Letter Evangelium vitae, which pertains especially to the service of truth and justice at the heart of law:
If, as a result of the tragic obscuring of the collective conscience,
an attitude of skepticism were to succeed in bringing into question
even the fundamental principles of the moral law, the democratic system
itself would be shaken in its foundations, and would be reduced to a
mere mechanism for regulating different and opposing interests on a
purely empirical basis.[xxxii]
Natural law expresses the metaphysical order which can be, has been and is known by the use of human reason.
The natural law expresses the end to which our practical action must
tend, if it is to be true and free. Saint Thomas Aquinas declared:
Hence this is the first precept of law, that good is to be done and pursued, and evil is to be avoided.[xxxiii]
The good for man is that which most perfectly corresponds to his
nature and finality. Saint Thomas Aquinas immediately derives other
precepts from the first precept of the natural law. The first of these
is “whatever is a means of preserving human life, and of warding off its
obstacles, belongs to the natural law.”[xxxiv]
The natural law presupposes that our consideration of particular
practical actions or laws, for example, is based on the proper ends of
persons and things, and not on my individual purposes. It presupposes
that man, through the use of reason, can know the proper ends of persons
and things, and respect them in the political order. Saint Thomas
Aquinas described the relationship of reason and the natural law:
[T]he precepts of the natural law are to the practical reason, what
the first principles of demonstrations are to the speculative reason;
because both are self-evident principles.[xxxv]
Natural law, therefore, establishes positive law upon metaphysical
principles of the good and freedom of man, and safeguards it against the
tyranny of self-interest and of individual purposes.
Monsignor Robert Sokolowski addresses the relationship of the natural
law to the Church’s teaching of it. Often, natural law doctrine is
rejected in Europe and the United States of America as the attempt of a
religious confession to impose its confessional beliefs on the general
population. Sokolowski reminds us that the teaching of the natural law
in the Sacred Scriptures does not destroy its “natural visibility” to
human reason.[xxxvi] In other words, the Church did not invent the
notion of the natural law. He insightfully cautions us against the
pitfall of seeing the natural law proclaimed in the Sacred Scriptures as
an expression of God’s purposes, rather than an expression of the order
which He has written in nature and inscribed in the “hearts of men,” as
Saint Thomas Aquinas teaches us.[xxxvii]
The inscription of the natural law in the heart of man means that
man, by the use of reason, is meant to know the true ends of things and
to act accordingly. It is not a question of divine voluntarism.
Sokolowski observes:
I would suggest that when Aquinas says that the natural law is
written in the hearts of men, he is referring to the capacity for truth
that we have been describing when we said that the natural ends of
things must be distinguished from our own purposes and from convention.
This elementary differentiation, this recognition that my purposes are
not all there is, and that the way we do things is not all there is, is a
way of being truthful that is achieved by the heart, which if it is
sound can cut through the impediments of being impulsive, obtuse,
immature, and vicious.[xxxviii]
The understanding of man’s capacity for truth must be the inspiration
of the moral and civic education of children and young people who, as a
result of the education, will be freed from the slavery of their
individual purposes to serve their proper good and end, and the proper
good and end of their fellow citizens and of the created order.
Conclusion
On March 30, 2006, Pope Benedict XVI spoke to the members of the
European Popular Party, addressing the role of the Church in the
political order. He brought to mind the irreplaceable contribution of
the Church to democracy in Europe, both historically and at present,
through the formation of citizens in the Christian virtues. He cautioned
that the elimination of Christians, as Christians, from the political
order would result in the loss of the strength which the Christian faith
and its practice bring to any nation or political body. He described
the perennial service of the Church and of her teaching to the civic
community. He stated:
It must not be forgotten that, when Churches or ecclesial communities
intervene in public debate, expressing reservations or recalling
various principles, this does not constitute a form of intolerance or an
interference, since such interventions are aimed solely at enlightening
consciences, enabling them to act freely and responsibly, according to
the true demands of justice, even when this should conflict with
situations of power and personal interest.[xxxix]
He had already presented the same teaching, in a more solemn manner, in his Encyclical Letter Deus caritas est, in which he discussed the relationship of justice, politics and ethics.
Regarding the Church’s involvement in the political order, he declared in Deus caritas est:
Faith enables reason to do its work more effectively and to see its
proper object more clearly. This is where Catholic social teaching has
its place: it has no intention of giving the Church power over the
State. Even less is it an attempt to impose on those who do not share
the faith ways of thinking and modes of conduct proper to faith. Its aim
is simply to help purify reason and to contribute, here and now, to the
acknowledgment and attainment of what is just.[xl]
Pope Benedict XVI makes it clear that the Church’s social teaching
“argues on the basis of reason and natural law, namely, on the basis of
what is in accord with the nature of every human being.”[xli]
Pope Benedict XVI makes it clear that the principles which he has
enunciated “are not truths of faith, even though they receive further
light and confirmation from faith; they are inscribed in human nature
itself and therefore they are common to all humanity.”[xlii] The
Christian faith does not contradict human reason but gives it
inspiration and strength in considering what is right and just, above
all, in the political order. Robert Sokolowski observes: “What seemed
noble and decent in the natural order remains so, and it is confirmed in
its goodness by being involved in this new context of grace.”[xliii]
There can be no question that the laws which govern a nation must be
founded upon right reason, distinguishing ends from purposes, and
respecting fully the natural law which God has written upon every human
heart. In the present situation, the Church’s service of the world
demands of her, above all, a witness to the foundation of the political
order upon the unchanging precepts of the natural moral law, which God
has taught and teaches to all men and women of every place and time. In
such a political order, law will indeed serve all that is true and just.
Raymond Leo Cardinal BURKE
***
NOTES
[i] Regarding the entire question of the fragility of the rule of law
and the metaphysical foundation of law, I draw heavily upon an earlier
presentation given on July 10, 2006, at the 9th Deutsch-Amerikanisches
Kolloquium, held at Wildbad Kreuth in Germany and published under the
title, “The Natural Moral Law: Foundation of Legal Realism,” in Die fragile Demokratie – The Fragility of Democracy, ed. Anton Rauscher, Berlin: Duncker & Humblot, 2007, pp. 29-45.
[ii] Robert Sokolowski, “The Human Person and Political Life,” in Christian Faith and Human Understanding: Studies on the Eucharist, Trinity, and the Human Person, Washington, D.C.: The Catholic University of America Press, 2006, pp. 184-185.
[iii] Abraham Lincoln, “Address at Gettysburg, Pennsylvania,” 19 November 1863, in Abraham Lincoln: Speeches and Writings 1859-1865, New York: The Library of America, 1989, p. 536.
[iv] “Was wird sich der junge Herrscher in diesem Augenblick
erbitten? Erfolg – Reichtum – langes Leben – Vernictung der Feinde?
Nicht um diese Dinge bitter er. Er bittet: „Verleih deinem Knecht ein
hörendes Herz, damit er dein Volk zu regieren und das Gute vom Bösen zu
unterscheiden versteht“ (1 Kön 3,9).” Benedictus PP. XVI, Allocutio
“Iter apostolicum in Germaniam: ad Berolinensem foederatum coetum
oratorum,” 22 Septembris 2011, Acta Apostolicae Sedis 103 (2011), p. 663. English translation: L’Osservatore Romano Weekly Edition in English, 28 September 2011, p. 6.
[v] “Politik muss Mühen um Gerechtigkeit sein und so die
Grundvoraussetzung für Frieden schaffen… Dem Recht zu dienen und der
Herrschaft des Unrechts zu wehren ist und bleibt die grundlegend Aufgabe
des Politikers.” Ibid., p. 664. English translation: Ibid., p. 6.
[vi] “kann die Mehrheit ein genügendes Kriterium sein.” Ibid., p. 664. English translation : Ibid., p. 6.
[vii] “in den Grundfragen des Rechts, in denen es um die Würde des Menschen und der Menschheit geht.” Ibid., p. 664. English translation: Ibid., p. 6.
[viii] “Natur und Vernunft als die wahren Rechtsquellen.” Ibid., p. 665. English translation: Ibid., p. 6.
[ix] “Hier erscheinen die beide Grundbegriffe Natur und Gewissen,
wobei Gewissen nichts anderes ist als das hörende Herz Salomons, als die
der Sprache des Seins geöffnete Vernunft.” Ibid., p. 666. English translation: Ibid., p. 6.
[x] “Ich möchte aber nachdrücklich einen Punkt ansprechen, der nach
wie vor – wie mir scheint – ausgeklammert wird: es gibt auch eine
Ökologie des Menschen. Auch der Mensch hat eine Natur, die er achten muß
und die er nicht beliebig manipulieren kann. Der Mensch is nicht nur
sich selbst machende Freiheit. Der Mensch macht sich nicht selbst. Er
ist Geist und Wille, aber er ist auch Natur, und sein Wille ist dann
recht, wenn er auf die Natur achtet, sie hört und such annimmt also der,
der er ist und der sich nicht selbst gemacht hat. Gerade so und nur so
vollzieht sich wahre menschliche Freiheit.” Ibid., p. 668. English translation: Ibid., p. 7.
[xi] “aus der Begegnung von Jerusalem, Athen und Rom – aus der
Begegnung zwischen dem Gottesglauben Israels, der philosophischen
Vernunft der Griechen und dem Rechtsdenken Roms.” Ibid., p. 669. English translation: Ibid., p. 7 (corrected by the author).
[xii] “Sie hat im Bewußtsein der Verantwortung des Menschen vor Gott
und in der Anerkenntnis der anantastbaren Würde des Menschen, eines
jeden Menschen, Maßstäbe des Rechts gesetzt, die zu verteidigen uns in
unserer historischen Stunde aufgegeben ist.” Ibid., p. 669. English translation: Ibid., p. 7.
[xiii] “Homines, familiae et varii coetus, qui communitatem civilem
constituunt, propriae insufficientiae ad vitam plene humanam
instituendam conscii sunt et necessitatem amplioris communitatis
percipiunt, in qua omnes, ad commune bonum semper melius procurandum,
cotidie proprias vires conferant. Quapropter communitatem politicam
secundum varias formas constituunt. Communitas ergo politica propter
illud commune bonum exsistit, in quo suam plenam iustificationem et
sensum obtinet, et ex quo ius suum primigenum et proprium depromit.
Bonum vero commune summam complectitur earum vitae socialis condicionum,
quibus homines, familiae et consociationes, suam ipsorum perfectionem
plenius atque expeditius consequi possint.” Concilium Oecumenicum
Vaticanum II, Constitutio Pastoralis Gaudium et spes, “De Ecclesia in mundo huius temporis,” 7 Decembris 1965, Acta Apostolicae Sedis, 58 (1966), 1095-1096, n. 74. English translation: Vatican Council II: The Conciliar and Post Conciliar Documents, ed. Austin Flannery, O.P., Collegeville, Minnesota: Liturgical Press, 1975, pp. 980-981, no. 74.
[xiv] “Sequitur item auctoritatis politicae exercitium sive in
communitate ut tali, sive in institutis rem publicam repraesentantibus,
semper intra fines ordinis moralis ad effectum deducendum esse, ad
commune bonum – et quidem dynamice conceptum – procurandum, secundum
ordinem iuridicum legitime statutum vel statuendum. Tunc cives ad
obedientiam praestandam ex conscientia obligantur. Exinde vero patet
responsibilitas, dignitas et momentum eorum, qui praesunt.” Ibid, p. 1096, n. 74. English translation: Ibid., p. 981, no. 74.
[xv] “per se ipsum conquisitum, sed personarum gratia, quae
communitatem socialem participant atque in ea tantum reapse et
efficaciter bonum suum consequi possunt.” Benedictus PP. XVI, Litterae
encyclicae Caritas in veritate, “De humana integra progressione in caritate veritateque,” 29 Iunii 2009, Acta Apostolicae Sedis, 101 (2009), p. 645, n. 7. English translation: Città del Vaticano: Libreria Editrice Vaticana, 2009, p. 9, no. 7.
[xvi] “Eo efficacius proximus amatur, quo magis bonum commune colitur, quod veris necessitatibus occurrat.” Ibid., p. 645, n. 7. English translation: Ibid., p. 10, no. 7.
[xvii] “Grundlegend is zunächst die These, dass zwischen Sein und
Sollen ein unüberbrückbarer Grabe ist. Aus Sein könne kein Sollen
folgen, weil es sich da um zwei völlig verschiedene Bereiche handle. Der
grund dafür ist das inzwischen fast allegemein angenommene
positivistische Verständnis von Natur.... Ein positivischer
Naturbegriff, der nie Natur rein funktional versteht, so wie die
Naturwissenschaft sie erkennt, kann kein Brücke zu Ethos und Recht
herstellen, sondern widerum nur funktionale Antworten hervorrufen.”
Benedictus PP. XVI, Allocutio “Iter apostolicum in Germaniam: ad
Berolinensem foederatum coetum oratorum,” 22 Septembris 2011, Acta Apostolicae Sedis 103 (2011), p. 666. English translation: L’Osservatore Romano Weekly Edition in English, 28 September 2011, p. 7.
[xviii] “Was nicht verifizierbar oder falsifizierbar ist, gehört
danach nicht in den Bereich der Vernunft im strengen Sinn. Deshalb
müssen Ethos und Religion dem Raum des Subjektiven zugewiesen werden und
fallen aus dem Bereich der Vernunft im strengen Sinn des Wortes heraus.
Wo die alleinige Herrschaft der positivistischen Vernunft gilt – und
das ist in unserem öffenlichen Bewußtsein weithin der Fall -- , da sind
die klassischen Erkenntnisquellen für Ethos und Recht außer Kraft
gesetzt.“ Ibid., p. 667. English translation: Ibid., p. 7.
[xix] Edward J. Richard, M.S., “Law and Morality: Taking a Theoretical Break from the Norm,” Studia Moralia, 35 (1997), 427-443; and 36 (1998), 239-265.
[xx] Edward J. Richard, M.S., “Law and Morality: Taking a Theoretical Break from the Norm,” Studia Moralia, 36 (1998), 255.
[xxi] “Ogni piacere diventa insufficiente e l’eccesso nell’inganno
dell’ebbrezza diventa una violenza che dilania intere regioni, e questo
in nome di un fatale fraintendimento della libertà, in cui proprio la
libertà dell’uomo viene minata e alla fine annullata del tutto.”
Benedictus PP. XVI, Allocutio “Ad Curiam Romanam: Omina Nativitatis,” 20
Decembris 2010, p. 36. English translation: L’Osservatore Romano Weekly Edition in English, 22-29 December 2010, p. 13.
[xxii] “fondamenti ideologici.” “una perversione di fondo del concetto di ethos.” Ibid., p. 36. English translation: Ibid., p. 13.
[xxiii] “Si asseriva – persino nell’ambito della teologia cattolica –
che non esisterebbero né il male in sé, né il bene in sé. Esisterebbe
soltanto un «meglio di» e un «peggio di». Niente sarebbe in se stesso
bene o male. Tutto dipenderebbe dalle circostanze e dal fine inteso. A
seconda degli scopi e delle circostanze, tutto potrebbe essere bene o
anche male. La morale viene sostituita da un calcolo delle conseguenze e
con ciò cessa di esistere.” Ibid., p. 37. English translation: Ibid., p. 13.
[xxiv] Cf. Catechismus Catholicae Ecclesiae, Città del Vaticano: Libreria Editrice Vaticana, 1997, nn. 1753 et 1756. English translation: Catechism of the Catholic Church, 2nd ed., Città del Vaticano: Libreria Editrice Vaticana, 1997, nos. 1753 and 1756.
[xxv] “Ecclesiae firmitudo in moralibus normis universalibus
immutabilibusque tuendis nihil habet contumeliosi; verae hominis
libertati solummodo inservit: quandoquidem praeter vel contra veritatem
nulla libertas habetur, absoluta defensio, nimirum laxamentis et
accomodationibus amotis, earum rerum, quas omnino necessarioque hominis
personalis dignitas postulat, via est dicenda et condicio ipsius
exsistentiae libertatis.” Ioannes Paulus PP. II, Litterae encyclicae Veritatis splendor, “De quibusdam quaestionibus fundamentalibus doctrinae moralis Ecclesiae,” 6 Augusti 1993, Acta Apostolicae Sedis, 85 (1993), 1209, n. 96. English translation: Vatican City State: Libreria Editrice Vaticana, p. 145, no. 96.
[xxvi] “totalitaria mundi visione... ob repudiationem fundamentalium
iurium personae humanae... religiosae postulationis quae exsistit in
corde cuiusvis hominis....” Ibid., 1212, n. 101. English translation: Ibid., p. 151, no. 101.
[xxvii] “est discrimen foederis inter democratiam et ethicum
relativismum, qui convictum civilem privat quavis tuta morali ratione
eum efficiendo omnino veritatis agnitione nudatum.” Ibid., 1212, n. 101. English translation: Ibid., pp. 151-152, no. 101.
[xxviii] “Populare tandem regimen principiis carens, in
totalitarismum manifestum occultumve prompte vertitur, ut hominum
annales commonstrant.” Ioannes Paulus PP. II, Litterae encyclicae Centesimus annus, “Saeculo ipso Encyclicis ab editis litteris «Rerum novarum» transacto,” 1 Maii 1991, Acta Apostolicae Sedis,
83 (1991), 850, n. 46. English translation: Vatican City State:
Libreria Editrice Vaticana, p. 89, no. 46 (corrected by the author).
[xxix] Planned Parenthood v. Casey, 505 U.S. 833, 852 (1992).
[xxx] Wolfgang Waldstein, “Natural law and the defence of life in Evangelium Vitae,” in Evangelium Vitae: Five Years of Confrontation with the Society
(Proceedings of the Sixth Assembly of the Pontifical Academy for Life,
Vatican City, 11-14 February 2000), ed. Juan de Dios Vial Correa and
Elio Sgreccia, Vatican City State: Libreria Editrice Vaticana, 2001, p.
225. Cf. Wolfgang Waldstein, “The capacity of the human mind to know
natural law,” in The Nature and Dignity of the Human Person as the
Foundation of the Right To Life: The Challenges of the Contemporary
Cultural Context (Proceedings of the Eighth Assembly of the
Pontifical Academy for Life, Vatican City, 25-27 February 2002), ed.
Juan de Dios Vial Correa and Elio Sgreccia, Vatican City State: Libreria
Editrice Vaticana, 2003, pp. 58-63; and Wolfgang Waldstein, Ins Herz geschrieben: Das Naturrecht als Fundament einer menschlichen Gesellschaft, Augsburg: Sankt Ulrich Verlag, 2010.
[xxxi] Wolfgang Waldstein, “The responsibility of the law towards the applications of biotechnologies of man,” in Human Genome, Human Person and the Society of the Future
(Proceedings of the Fourth Assembly of the Pontifical Academy for Life,
Vatican City, 23-25 February 1998), ed. Juan de Dios Vial Correa and
Elio Sgreccia, Vatican City State: Libreria Editrice Vaticana, 1999, p.
399.
[xxxii] “Si autem, ob omnium conscientiae miserrimam obtenebrationem,
sceptica ratio in dubium prima principia quoque moralis legis devocat,
ipsa democratica institutio funditus evertitur atque ad meracam
machinationem redigitur, quae re diversa dissonaque commoda moderatur.”
Ioannes Paulus PP. II, Litterae encyclicae Evangelium vitae, “De vitae humanae inviolabili bono,” 25 Martii 1995, Acta Apostolicae Sedis,
87 (1995), 482, n. 70. English translation: Vatican City State:
Libreria Editrice Vaticana, p. 128, no. 70. It is interesting to note
that the translation of the title in English is “On the Value and
Inviolability of Human Life,” while a more accurate translation of the
Latin title would be: “On the Inviolable Good of Human Life.”
[xxxiii] “Hoc est ergo primum praeceptum legis, quod bonum est faciendum et prosequendum, et malum vitandum.” Summa theologiae, I-IIae, q. 94, art. 2. English translation: St. Thomas Aquinas, Summa Theologica,
Complete English Edition, tr. Fathers of the English Dominican
Province, Westminster, Maryland: Christian Classics, 1981, Vol. 2, p.
1009.
[xxxiv] “pertinet ad legem naturalem ea per quæ vita hominis conservatur, et contrarium impeditur.” Summa theologiae, I-IIae, q. 94, art. 2. English translation: Ibid., p. 1009.
[xxxv] “præcepta legis naturæ hoc modo se habent ad rationem
practicam, sicut principia prima demonstrationum se habent ad rationem
speculativam: utraque enim sunt quædam principia per se nota.” Summa theologiae, I-IIae, q. 94, art. 2. English translation: Ibid., p. 1009.
[xxxvi] Robert Sokolowski, “What Is Natural Law?: Human Purposes and Natural Ends,” in Christian Faith and Human Understanding: Studies on the Eucharist, Trinity, and the Human Person,
Washington, D.C.: The Catholic University of America Press, 2006, p.
229. Cf. Wolfgang Waldstein, “The capacity of the human mind to know
natural law,” p. 65.
[xxxvii] “Sed lex scripta in cordibus hominum est lex naturalis.” Summa theologiae, I-IIae, q. 94, art. 6. English translation: Ibid., p. 1012.
[xxxviii] Sokolowski, “What Is Natural Law?: Human Purposes and Ends,” pp. 230-231.
[xxxix] Benedictus PP. XVI, Allocutio “Ad Congressum a «Populari Europae Factione» provectum,” 30 Martii 2006, Acta Apostolicae Sedis, 98 (2006), 344. The allocution was delivered in English.
[xl] “Fides rationi tribuit quo melius compleat munus suum meliusque
hoc quod proprium est sibi intueatur. Hic reponitur catholica doctrina
socialis: quae non vult Ecclesiae potestatem inferre in Civitatem. Neque
iis qui fidem non participant imponere cupit prospectus et se gerendi
modos huius proprios. Simpliciter prodesse cupit ad rationem
purificandam suumque adiumentum afferre ita ut quod iustum habetur, hic
et nunc agnosci ac postea ad rem perduci possit.” Benedictus PP. XVI,
Litterae encyclicae Deus caritas est, “De christiano amore,” 25 Decembris 2005, Acta Apostolicae Sedis, 98 (2006), 239, n. 28. English translation: Vatican City State: Libreria Editrice Vaticana, p. 46, no. 28.
[xli] “argumentatur initium sumens a ratione et a naturali iure, id est ab eo quod congruit naturae cuiusque personae humanae.” Ibid., 239, n. 28. English translation: Ibid., p. 46, no. 28.
[xlii] Pope Benedict XVI, Allocutio “Ad Congressum a «Populari Europae Factione» provectum,” 30 Martii 2006, Acta Apostolicae Sedis, 98 (2006), 345.
[xliii] Sokolowski, “What Is Natural Law?: Human Purposes and Natural Ends,” p. 233.
