February 26, 2017
What was once called the objective moral order now exists mostly in the mind of those still faithful to the divine and natural law. But its clarity and practice has been forced underground.
James V. Schall, S.J.
In all institutions we find a difference between what the constitutions or authorized descriptions define them to be and what they turn out to be in practice. We hear of two constitutions—one “written” and one “living”—that often seem to have little relation to each other. A firm’s legal definition or a university’s “mission” statement may be difficult to reconcile with what transpires on a day to day basis. To transform words and ideas into actions and operations is never easy. But in part that diversity of statement-to-performance is in the nature of human things.
When we state what a thing “ought” to be or is “intended” to be, we do not necessarily mean that everything will function as we ideally might wish. Things have to become what they ought to be, but it is seldom a bloodless or quick affair. That is why the virtue of patience exists. History and its records will often tell us the difference between reality and expectation. This awareness is what we mean by a “human” organization. To allow for no failures or imperfections means to not have any real organization. But it also means that what is less successful or perfect can and should seek improvement. Frequent failure is no excuse for stagnation or for not seeking to work things out.
In the Church, we hear talk of an “internal” and an “external” forum. The latter affirms what the rule or law is; the former deals with the complexity of observing it. Norms or principles govern both law and its consistent application to practice. The famous legal principle “Odiosa sunt restringenda”, when spelled out, means that the law-maker is responsible for the law’s clarity. No one is obliged to observe something that cannot be understood or that is confusing about what it means. Liberty is on the side of the observer of the law. In dubiis, libertas. Careful legal formulation is designed to keep its burden as light as possible. If his understanding of an unclear law is conceivable in good sense, one subject to the law is not bound by its confusion. There is nothing mysterious here; it is common sense. Courts at their best are designed to assure justice in the particular, not in the abstract, in real justice, not in seeming justice.
Aquinas, in a famous passage, tells us that if we honestly think that something is a law or a requirement, even if it is not, we are bound to observe it. This surprising position has the paradoxical effect of making it moral sometimes to observe an immoral law, or vice versa—immoral to observe a just law. The reason for this seemingly ill-advised guidance is to protect the integrity of conscience as the last standard of our action’s goodness or badness, the one on which we shall be judged. It is “subjective” in the sense that, though invisible to others, it is what the one who performs the act, at the time he does it, thinks he is doing. It is still “objective” in the sense that his understanding of it constitutes the rule to which he is bound. The cure for this anomaly is to instruct the one in error about the objective rule so that he can understand and observe it both from the inside and from the outside.
Law is directed to mind. We do not properly observe a law because of its sanctions or rewards. We cannot properly obey a law unless we understand it, unless it is intelligible. If we do not understand it, we can still reasonably obey it because of the authority that enacted it, when we are sure the authors of the law are themselves reasonable in ways we are not. Though we do not know the technicalities of why an automobile runs, when it does not function we go to a mechanic who does know because we trust his authority.
This understanding is our protection against unreasonable laws. It is also the community’s protection against our claiming that our interpretation is really the true one when it is not. This is why Aquinas called law a rule or ordination of reason—not will. If what ruled were will, we would have no independent criterion of its validity or reasonableness. It would be law solely because the prince, who can enforce whatever he wants, willed it. The prince’s (or the democracy’s) will has no check other than his own changing of his mind. We do not object to a purely willed law because it is unreasonable. We object to it because we would not will it for ourselves. This approach means that we do not have a reason for what we do when we obey or disobey a given law.
To argue to a universal principle from an exceptional case has long been considered a most dangerous practice. An exceptional case in principle it not one in which we legitimately break the law. It is one in which the circumstances surrounding the particular act are such that to follow them means that we are obeying the law, not disobeying it. In this sense, we are not doing what is evil by permission of some advisor or guide who supposedly sheds light on our intentions and understanding of what we are doing. Rather we are seeing whether it is true that the circumstances and understanding of what we are doing are in conformity with the law as stated. An exception to the letter of the law does not mean that the law is not being observed. It means that it is. What is important is the integrity and truth of the law’s intention that is to be observed.
In the treatises on justice, we have a supplementary virtue called “equity”. It comes into play, as experience teaches, when upholding the letter of the law, which is normally to be done, does not result in a just action. Such situations are presumably rare. The normal remedy is for the lawmaker to reformulate the law more exactly to cover possible exceptions. We know that something is amiss when we can give a valid reason why upholding the law would itself be unjust. Equity means that, knowing what the law is and understanding this practical fact, we proceed to observe the law or rule by not observing its letter in a particular case. We can explain our action reasonably. Any reasonable person, on seeing the situation, would agree that, to use a famous Platonic example, we should not return a sword that to the madman from whom we borrowed it. Why not? Not because it is not his sword, but because he has become irrational. Justice only binds in reason. We are just by not observing the letter of the law.
If the Myth of Er in Plato’s Republic or the Last Judgment in Scripture means anything, it indicates that, in the end, those who pass into the Isles of the Blessed and those who do not are judged finally by why each person did what he did for good or ill. At this point, no room is left for forgiveness or equity. It is clear that we did or did not do these acts sinfully or virtuously. The sinners go to the left and the virtuous to the right. Both now have the clarity about the relation of their decisions to their acts and what flows from them. No more room is left for the “who am I to judge?” theme. The judgment is made by the Judge who is authorized to make it. We do not presently know whether, at the end, but a few are saved—or everybody, or most, or half, or ten percent. In this sense, the population of the final kingdom cannot be determined by us from anything this side of death and final Judgment. We can designate this final “City of God” or Church to be “subjective” in the sense that we had no idea who finally belong to one or the other city. But in principle, it is totally objective, based on what in fact the persons did or did not do.
We run into all sorts of trouble if we try to replace objective standards and judgments by subjective ones. It is the responsibility of the Church and its ministers to uphold the law as it was passed down to them to keep. This is their primary justification for credibility. They have consistently proclaimed the same thing down the ages as if it were entrusted to them, not as something they made up or added to, but as something that they have received. Their function is, in a sense, negative. This view is or is not in conformity with what is passed down. The sources of their reception are nature, i. e., reason, and revelation. The latter is addressed to the former. They are not antagonistic to each other. What revelation adds to reason has the effect of making it more coherent and reasonable.
Cases of equity arise in almost every moral area: In spite of the external evidence, was a marriage valid? Was a murder intended? Was a man cheated out of his property? Did someone lie under oath? Such issues, on careful examination and inquiry, can mostly be solved in the objective order through justice and equity. That is, a judge may concur that the circumstances were such that the law should not have been obeyed, or the sin was not committed. If this situation of clarification were what the current problem is, it would be relatively simple to solve. No one denies that some injustices are never requited; some good things never properly rewarded. To try to do so, as Aquinas suggested, requires a divine mind, which is the point of a final Judgment.
The question becomes more delicate when an objective natural or divine law must be explicitly or implicitly ignored or changed in order to reach the solution that a sin or crime was not committed so that life can go on as usual. This consideration brings up the question of “rights” based on will alone, the kind behind most modern thinking since Hobbes. That is, the only way that we can conclude to what we want in our situation is to change the law, whether divine or natural. The theory we need to achieve this goal is to make law a question of will, not reason.
Does my “right” to have my problem resolved justify that the law prohibiting it must be changed to accommodate what I think is my “right”? Or does my erroneous conscience solve the problem? I honestly thought it was right to do what I did; therefore it was right in my case. And if I cannot or will not change my opinion, then it is permitted for me to live as I think my “rights” indicate. I obey the law by obeying the changed law. Since I have a right to my conscience, no one else may interfere with my exercise of it. Everyone is required to accept my subjective judgment as valid in public.
This reflection is entitled “the subjective church”. This expression is used ironically. It is used in contrast to what I will call “an objectively immoral society”. A subjective church thus would be one in which the actions of its members that did not correspond with the objective law as passed down to them were considered to be identical in moral status with those who did observe these laws or commandments. This view would not deny any Last Judgment criterion whereby the final resolution is made on objective grounds of what actually happened by a Judge who knew all the facts and circumstances. A member of the subjective church would not be someone whose situation is defined by equity, by proper reading of the circumstances so that the actual law was in fact observed. He would rather be one who acted or lived against the natural or divine law but was still said to be in good standing with the law. Someone who was divorced, remarried, and continued cohabitation would be in the same situation as someone who was likewise divorced and remarried but did not live together. In other words, the observance or non-observance of the law itself made no difference.
By an objectively immoral society, I mean one that, by positive law, establishes and enforces measures that explicitly violate natural and divine law. They are “objective” in the sense that they indicate what people are authorized to do and what they do “do”, to recall a phrase from Machiavelli. If we take a hard look at practices such as divorce, contraception, abortion, gay life and “marriage”, euthanasia, selling of fetal parts, various sorts of transgendered life, human begetting outside the womb and family, we see all such practices were once things that we read about as aberrations. They were ideas. We could understand them. If they “existed”, they existed in the mind and imagination. These same ideas now exist as rules and laws of the public order; they carry themselves out with the approval of civil society. They are enforced against efforts either to change them or to speak of them as aberrant.
What we have here, then, is a subjective moral order that has now been made public or objective. It has been put into practice along with an objective church whose members live contentedly according to the present civil norms in good standing both in the church and society. What was once called the objective moral order now exists mostly in the mind of those still faithful to the divine and natural law. But its clarity and practice has been forced underground. The practitioners of what has been handed down are both countercultural and subjected to the penalties of civil law for practicing or affirming the objective moral law. Thus, this right order now exists only in the mind. The former subjective disorder is visible in the public square where it is said to be a common good. Finally, if this paradoxical conclusion sounds like something out of Plato, it is basically something out of Plato. Such are the antiquity and newness of human things.