Angilbert (fl. ca. 840/50), On the Battle Which was Fought at Fontenoy

The Law of Christians is broken,
Blood by the hands of hell profusely shed like rain,
And the throat of Cerberus bellows songs of joy.

Angelbertus, Versus de Bella que fuit acta Fontaneto

Fracta est lex christianorum
Sanguinis proluvio, unde manus inferorum,
gaudet gula Cerberi.

Sunday, August 8, 2010

Cardinal Mercier and the Natural Law, Part 15: Individual Right to Life and Work

LIFE, LIBERTY, AND PROPERTY are the three headings under which Cardinal Mercier organizes his discussion of the rights of the individual in his A Manual of Modern Scholastic Philosophy. Individual right subsumes the "obligations of justice which a man must fulfill with regard to his neighbor, obligations which are independent of any family or political ties." In other words, one man's right is everyone else's duty to respect, and they are his independent of family, tribe, politics, or faith.

As we have seen in prior postings, the natural end for which man by his very nature is made is the contemplation of God. God is each man's natural summum bonum or finis ultimus, his greatest good, his ultimate end. It follows from this that each man has the right to work out his individual path toward this common, universal goal. This goal, this end, common to and shared by all men, is what gives each man his or her unique dignity before God:
Since man is created for this state of perfection and happiness [that comes from the contemplation of God], he must tend towards it during his life. He has therefore the right to work out his perfection, the right to act and to live. He is much more than a means towards the welfare of his fellow-men. We may not, then, dispose of the life of another as we may that of an animal. The human personality is the ground of the right to live. Only higher moral motives can justify the sacrifice of human life.
[270(76)] As a consequence of his right to life, man has the right to self-defense against an unjust aggressor. He may use any reasonable means to protect his life from the threats of an unjust aggressor.

Does this right to self-defense against an unjust aggressor also include the right to defend against an unjust aggressor who threatens not one's life, but one's property? Mercier notes that many penal codes limit or even restrict the use of deadly force against someone in defending one's property. The argument in support of such restriction is that where there is a conflict between two rights--the right to property and the right to life of the one who threatens one's property--the greater right ought to prevail. To the contrary, there are those who argue that an owner has no obligation to remain defenseless to one who is unjustly despoiling him, and that assault against property is very closely tied to assault against one's person, especially if there is a threat of violence against the owner or if the property that is in question is one that is indispensable or essential for his continued existence. Moreover, the defense of a right, such as a right to property, "must not be stopped by the fact that a criminal forces us to do him a greater injury than that which he threatens us." [271(77)] This principle is true even if the injury is eternal damnation. Thus, if an innocent traveler is accosted by a brigand who threatens his life, he may legitimately kill the brigand, even though in killing the brigand while the latter is "yielding to his criminal impulse" exposes the brigand's soul to eternal damnation. "The man who attacks us unjustly puts himself outside his rights." [271(77)]

Juan de Lugo by Unknown Artist

Mercier elaborates on the second opinion by pointing to the teaching of Juan de Lugo (1583-1660), the Spanish Jesuit and Cardinal whom St. Alphonsus de Liguori considered a preeminent authority, easily first right under St. Thomas Aquinas, "post D. Thomam inter alios theologos facile princeps." (Th. Mor., lib. 4. n. 552). De Lugo opines that it is allowable to kill a thief if there is no other means to protect and defend one's possessions. De Lugo, however, also provides that both charity and the greater interests of social order require that the possession be of some consequence to justify the killing of a thief to protect property. [271(77)] One ought not to kill a petty thief for stealing an apple.

The right to life and the end or purpose of human life require man to put his faculties to use in the world at large. In exercising all his faculties and his gifts, and in expending his energies, however, he must do so within the constraints of the moral law and the just precepts of any public authority. In other words, man, in his freedom, has no right or liberty to act against the moral law or contrary to just human law in his efforts to flourish. Thus, a homosexual has no right or liberty to pursue his lifestyle, which is an affront to the natural law. Assuming the exercise of one's faculty is both morally and legally unobjectionable, however, it is an infringement of a man's right to liberty to prevent him from doing so. Similarly, it is an infringement of a man's liberty for one man to compel another to do an act which he is not under any moral or legal compulsion of doing. [272(78)]

The right of liberty therefore evidently encompasses the right to work, to labor, "that is, to apply his activity to external things and to make a general use of the energies of his being, either for his own advantage or that of others." [272(78)]"The State cannot set itself to be a particular providence for each. Should it do so, it would run the risk of crushing all private enterprise besides taking upon itself an impossible task."
--Cardinal Mercier
This includes the liberty of choosing one's profession or occupation. [272(79)] The right to work, however, should not be confused with "the pretended right to be given work." [272(78)] (emphasis added). Such latter pretended right would impose upon the State (and hence on all citizens who contribute taxes to the State) an obligation of providing for each man a specific job. The State's role is rather to protect the individual against coercion, to provide in general the conditions that are favorable to the exercise of the right to work. Ultimately, however, "it falls on the individual to bring about these conditions [in each particular case], and this must be the work of personal initiative and effort." [272-73(78)]
The State cannot set itself to be a particular providence for each. Should it do so, it would run the risk of crushing all private enterprise besides taking upon itself an impossible task.
[273(78)] Mercier is not by any means an advocate of a nanny state.

In his discussion of the right to liberty, Mercier tackles the issue of slavery, since slavery, and the compulsion regarding a person's labor that is at its heart, appears to be contrary to the right to work and the liberty of choosing one's occupation or profession. Mercier first distinguishes between "absolute slavery" or chattel slavery, and "mitigated slavery" and "serfdom." Absolute or chattel slavery stands absolutely condemned as against the natural law:
[In absolute or chattel slavery] the slave is accounted as a chattel, destitute of the essential rights of a human person, without the rights to live, to create a family, to acquire property, etc. All modern authors condemn this form of slavery without qualification. Of old it called for the denunciations of the Stoics: 'Whom though callest slave', wrote Seneca,* 'is born of the same seed as thyself, he enjoyeth the same sky, breatheth the same air, liveth and dieth as thou thyself'. And Epictetus: 'There is no slave by nature, save the being devoid of reason; not of men, but of beasts only is this true'.**
The Stoic voices were opposed, it is true, by that of Aristotle, who, though he admits that slaves partake of reason, also justifies slavery on the grounds that some men are, by nature, slaves. *** The vice of slavery runs deep, and it was firmly rooted in the institutions of the age in which Christianity's seed was first planted. On its own, paganism would have been unable to overcome the blight of slavery. And even with the aid of Christianity, it took a long time to get rid of the old yeast of slavery so that the world might be a new batch without the yeast of slavery. And even among Christians, most particularly in the New World, the world lapsed back in a big way into institutional slavery, even chattel slavery. The world "needed the enduring influence of Christian ideas to effect the gradual change from slavery to serfdom, and so to prepare the way for perfect freedom." [274(79)] (emphasis added). And it still does. Without the continuing influence of Christian ideas, is there any doubt that the world, in time, perhaps under the increasing influence and Western accommodation to Islam, will lapse back to slavery? The United Nations is not a repository of Christian leaven, Christian light, Christian salt. In large part, it is living on inherited Christian capital.
The slavery of the ancient world received its death-blow the day when slave and patrician met in the depths of the catacombs to partake of the Mystic Banquet.
[274(79)] From a historical standpoint, it is "supremely unjust" to refuse to recognize the contribution of Christianity in the wiping out of this social blight. The exhortations of St. Paul, at the heart of the Christian Gospel, that "there is neither . . . slave nor free . . . for you are all one in Christ Jesus," was the seed stuff of social transformation. (Gal. 3:28) There is nothing remotely like it in Islam, whose founder participated, indulged, indeed relished, in the institution of slavery enjoying its unjust fruits. Hinduism and Buddhism do not have the requisite dogmatic backbone.

How do we classify mitigated forms of slavery, such as serfdom, indentured servitude, peonage, or even some forms of sharecropping, which, indeed, are not chattel slavery in the strict sense, but, depending upon their particular specifics, may be so attenuated that they become "radically different from it"? In such mitigated forms of slavery, the personality of the slave or servant is acknowledged, as are his inalienable rights by nature. There is some infringement, however, upon the untrammeled exercise of the slave or servant's right to work or to the fruits of his labor, usually in return for some reciprocal consideration or advantage. Historically, such a mitigated forms of slavery were seen in the institution of serfdom, indentured servitude, peonage or debt servitude, and some forms of sharecropping. Generalizing, and recognizing that such mitigated slavery existed in many forms, under such systems as feudalism the serf was not considered personal property of his lord or vassal, nor did the lord or master have the right to sell the serf (although historically, in some cases he could) or to put him to death. The serf was a legal person; he retained the right to marry, for example, though even this right might be somewhat controlled or limited, and he had the right to worship. The right that was refused the serf was the right to choose his occupation, as the serf would be bound by positive law or custom to devote his life to the service of his lord in the working of the the soil or other manual labor. In contrast, the indentured servant would be obligated to an occupation or task for a fixed period of time (typically three to seven years). In return, for the serf's obligation to the lord, the lord would have certain obligations to his serf such as perhaps protecting the serf and his property from harm. Similarly, in return for the promise of labor over time, the indentured servant would obtain food, clothing, lodging, and perhaps transportation (as for example many colonialists were given passage to the colonies in exchange for a promise to work for a term of years), and training in a trade. In some cases (serfdom/vassalage), this legal condition was hereditary or tied to land ownership. In other cases (indentured servitude), the condition was entered into voluntarily; whereas in others (peonage, debt servitude) not necessarily voluntarily. The kinds of economic relationships where liberty of one is restricted can be legion between the extreme of chattel slavery and the extreme of at-will employment.**** What is the morality of such mitigated forms of slavery (and their form can be legion)?

Some moral theologians (unnamed by Mercier) condemn serfdom, indentured servitude, debt servitude and peonage outright. Others would allow it provided that such a relationship is based upon a free and voluntary agreement. Modernly, most laws in the West condemn such practices. A third opinion (no source cited by Mercier) would allow as justified provisional or transitional serfdom or servitude, even on a hereditary basis, if extreme or pressing historical or economic circumstances justified it. Such a regime may be tolerated, for example, as a transition from outright chattel slavery to a freer form of society. In practice, this seems to have been the historical attitude of the Church "towards an institution which could not pass away until a profound reform in ideas and customs had eventually been accomplished." [275(79)] Here we have a moral vision tempered, but not overcome, by Realpolitik and the prudence of the limits of power over customary institutions.
Peoples, like individuals, must gradually grow accustomed to the enjoyment of their liberty. Too often an immediate emancipation of slaves without any transitional stage has been the reverse of a blessing. It has offered an easy path to idleness and immorality. After being habituated [by generations of custom] to a rule of absolute slavery or to the wild independence of barbarism, a man is not likely to conform to the great law of work except under some form of compulsion. A mitigated slavery that respects the dignity and the fundamental rights of human personality can then, it would seem, be justified, not indeed as a definitive institution but as a provisional state of affairs.

Our next blog posting will look at Mercier's discussion of liberty of opinion and expression.


*Seneca, Epistulae Morales ad Lucilium, V.xlvii.10. (Vis tu cogitare istum quem servum tuum vocas ex isdem seminibus ortum eodem frui caelo, aeque spirare, aeque vivere, aeque mori!) "See that you remember that he whom you call your slave sprang from the same seed, is smiled upon by the same skies [as you], and [with you] breaths, equally lives, and equally dies!)
**Although this is clearly the thought of the Stoics, I could not locate this quote in Epictetus's Enchiridion or Discourses.
***Aristotle, Politics 1254b15-24: ὅσοι μὲν οὖν τοσοῦτον διεστᾶσιν ὅσον ψυχὴ σώματος καὶ ἄνθρωπος θηρίου (διάκεινται δὲ τοῦτον τὸν τρόπον ὅσων ἐστὶν ἔργον ἡ τοῦ σώματος χρῆσις, καὶ τοῦτ᾽ ἐστ᾽ ἀπ᾽ αὐτῶν βέλτιστον), οὗτοι μέν εἰσι φύσει δοῦλοι, οἷς βέλτιόν ἐστιν ἄρχεσθαι ταύτην τὴν ἀρχήν, εἴπερ καὶ τοῖς εἰρημένοις. ἔστι γὰρ φύσει δοῦλος ὁ δυνάμενος ἄλλου εἶναι (διὸ καὶ ἄλλου ἐστίν), καὶ ὁ κοινωνῶν λόγου τοσοῦτον ὅσον αἰσθάνεσθαι ἀλλὰ μὴ ἔχειν. ("[A]ll men that differ as widely as the soul does from the body and the human being from the lower animal (and this is the condition of those whose function is the use of the body and from whom this is the best that is forthcoming) these are by nature slaves, for whom to be governed by this kind of authority is advantageous, inasmuch as it is advantageous to the subject things already mentioned. For he is by nature a slave who is capable of belonging to another (and that is why he does so belong), and who participates in reason so far as to apprehend it but not to possess it . . . ") (H. Rackham, trans.)
****At-will employment is an employment relationship in which both parties are absolutely free to break the employment relationship without any liability or reciprocal obligation for future work or pay or other obligation. One can easily think of situations where such absolute lack of restriction on the employment relationship (the very opposite of chattel slavery) is unjust, either for the employer or for the employee. What if, an employee suddenly quits after the employer has invested three years' of training? Is there any moral obligation on the part of the employee to consider the rights of the employer? Should the law recognize or enforce such a moral obligation? What if a devoted employee, who has contributed years of effort to the success of some enterprise, gets sick and so is fired by the employer? Does the employer have a moral obligation to the employee in such instance? If so, should the law enforce it? If the at-will employment relationship (the opposite of chattel slavery) can itself be unjust, then where, in between at-will employment and chattel slavery, does the relationship become morally acceptable? In this area of contingency there is much room for opinion, adaptation to circumstance, and the exercise of prudence.

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