Morality's Hold: Authority and Power

THE POET HORACE WROTE in one of his poems:

Power without wisdom falls by its own weight:
The gods themselves advance temperate power:
And likewise hate force that, with its whole
Consciousness, is intent on wickedness.*

Power must be tempered, guided by something, and in the Catholic Church's view, the fundamental order under which authority's power is to be exercised is the moral law that was established by God, the creator of heaven, earth, and man. Therefore, the Compendium states succinctly the principle that is forever the bane of tyrants: "Authority must be guided by the moral law." (Compendium, No. 396) From the moral order, authority obtains its power to impose obligations and its moral legitimacy.

There is no moral law without regard to God, since the moral order has God as the fons et origo and the finis ultimus:

All of its [authority's] dignity derives from its being exercised within the context of the moral order, "which in turn has God for its first source and final end."

(Compendium, No. 396) (quoting Pope John XXIII, Pacem in terris, No. 270) In fact, recognition of the existence of God is absolutely necessary to prevent the advent of tyranny, because the moral order upon which authority relies "has no existence except in God; cut off from God it must necessarily disintegrate." (Compendium, No. 396) (quoting Pope John XXIII, Mater et magistra, 450) The modern loss of the sense of God therefore suggests not freedom, but oppression.

The moral order precedes authority, and is the basis of authority, which is to say that authority is nothing but tyranny without it. Authority--which is a moral concept--should therefore be distinguished from power--which is a legal, political, social, historical, or practical concept. Tyrants wield power--a legal, political, or practical reality--arbitrarily, without regard to the moral law, and hence they undermine their own foundation. Sic semper tyrannis!

Since power exercised without regard to authority is tyranny, denial of a moral order and of a natural moral law is tantamount to tyranny. And this is true whether the form of tyranny is in the form of one (monarchy or dictator) or the form of many (democracy). Tyranny is not based on form, but on substance. Tyranny exists whenever power--wherever it is to be found and in whatever manner exercised--acts without reference to an objective moral law.

Since authority flows from the moral law, it follows that authority will "recognize, respect, and promote essential human and moral values." These human and moral values are built in human nature so to speak, and, as John Paul II felicitously phrased it in his encyclical Evangelium vitae, "flow from the very truth of the human being and express and safeguard the dignity of the person." These human and moral values, the great Pope continues, are such that "no individual, no majority, and no State can ever create, modify, or destroy." (Evangelium vitae, 71).

The collapse of moral consensus in the West caused by the rejection of an objective moral order--the natural moral law--which leads to a vicious skepticism or relativism in morality therefore forebodes a frightening return of tyranny. This, of course, has been famously referred to as the "tyranny of relativism" by Pope Benedict XVI.

The inability to appreciate an objective moral order is also tied to the increased secularization of social, political, and legal life. We act as practical atheists. We act as if God did not exist.

If, as a result of the tragic clouding of the collective conscience, skepticism were to succeed in casting doubt on the basic principles of the moral law, the legal structure of the State itself would be shaken to its very foundations, being reduced to nothing more than a mechanism for the pragmatic regulation of different and opposing interests.

(Compendium, No. 397)

The world has groaned, and finds itself in this "tragic cloud" were all moral truths are denied and God's providence no longer offers guidance. Our moral vision thus obscured we walk lemming-like right into the pit of tyranny.

Since it is properly anchored in the moral law, authority properly exercised will enact just and moral laws. As the Compendium summarizes the relationship between the natural moral law, authority, and positive laws, citing back to the principles so well-stated by St. Thomas Aquinas:

Authority must enact just laws, that is, laws that correspond to the dignity of the human person and to what is required by right reason. "Human law is law insofar as it corresponds to right reason and therefore is derived from the eternal law. When, however, a law is contrary to reason, it is called an unjust law; in such a case it ceases to be law and becomes instead an act of violence."

(Compendium, No. 398) (quoting S.T. IaIIae, q. 93, a. 3, ad 2)

When human laws conform to the natural law--which is a participation in the eternal law of God--then they bind in conscience. That is why the Compendium states the traditional teaching:

Authority that governs according to reason places citizens in a relationship not so much of subjection to another person as of obedience to the moral order and, therefore, to God himself who is its ultimate source. Whoever refuses to obey an authority that is acting in accordance with the moral order "resists what God has appointed" (Rom. 13:2).

(Compendium, No. 398)

Not only must human laws conform to reason, they must also promote the common good. Indeed, it is the same thing to say that a human law is unreasonable, does not promote the common good,** is against the natural law, or is against God's law, since these are all different ways of saying the same thing.

When human laws do not conform to the natural law, when they are unreasonable, or when they act against the common good, then any tie between God's eternal law and human law is severed, and human law flails in the winds of moral chaos, like some kite that has lost its anchoring string. Such laws have lost their authority, are acts of raw will not reason, and in fact are hand in glove with the central law of the Devil: "Evil, be thou my good!"***

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*Horace, Odes III.4.65-70 (Vis consili expers mole ruit sua; / Vim temperatum di quoquo provehunt / In maius; idem odere vires / omne nefasanim moventis.)
**As the Compendium notes: "[W]henever public authority--which has its foundation in human nature and belongs to the order pre-ordained by God--fails to seek the common good, it abandons its proper purpose and so delegitimizes itself." (Compendium, No. 398) By rejecting the natural moral law and the objective moral order, this seems to be increasingly applicable to most Western governments.
***John Milton, Paradise Lost, IV, 108.

The People is Sovereign Under God

“THERE IS NO AUTHORITY except from God, and those that exist have been established by God," says St. Paul to the Romans (Rom. 13:1). This reality is mediated through human nature, particularly in man's social nature, which finds its ultimate source and in fact its end in God the Creator. It is man's nature to live with others of his kind. It is a necessity that such a common life have an ordering principle, which requires both ruler and rule, government and law, and the authority requisite to both. This natural law chain between authority and God is what is implied in St. Paul's succinct statement.

Drawing from Pope John XXIII's Encyclical Pacem in terris, the Compendium of the Social Doctrine of the Church amplifies on the relationship between human political authority and God and the natural law linkage or chain between both:

Since God made men social by nature, and since no society can hold together unless some one be over all, directing all to strive earnestly for the common good, every civilized community must have a ruling authority, and this authority, no less than society itself, has its source in nature, and has, consequently God for its author.

(Compendium, No.393)

The necessity of political authority is what defines its responsibilities and what defines its limits. The political authority is responsible for ordering freedom and encouraging virtue with a view to the common good of a people of which it has charge:

Political authority must guarantee an ordered and upright community life without usurping the free activity of individuals and groups, but disciplining and orienting this freedom, by respecting and defending the independence of the individual and social subjects, for the attainment of the common good.

(Compendium, No. 394) It is significant that the Compendium speaks of an "ordered" community life as well as an "upright" community life. It understands political authority to have some responsibility for assuring the virtue of its citizens. It advocates something different than some sort of liberalism, where order, but not uprightness, is what authority is about.

Indeed, in the Church's understanding of the foundations of political authority, morality and authority, morality and community, morality and law are never apart. "Political authority, in fact, 'whether in the community as such or in institutions representing the State, must always be exercised within the limits of morality and on behalf of the dynamically conceived common good, according to a juridical order enjoying legal status. When such is the case citizens are conscience-bound to obey.'" (Compendium, No. 394) (quoting VII, Gaudium et spes, 74)

Authority, therefore, cannot be used against the common good and in favor of some groups over others. Authority likewise cannot be used to protect immoral acts--and calling immoral acts "rights" so as to clothe them with the protective mantle of the State is a word game which covers an underlying abuse of authority. Finally, authority must not use immoral means, even to achieve legitimate ends.

It is only a State that understands these moral restraints upon its authority that can issue laws that bind in conscience. An authority that believes itself unattached to the natural law--even one that does dons a contrived multi-colored coat of pluralism, multiculturalism, or liberalism--is really nothing but a naked tyrant.

The ultimate source of public or political authority is God. Yet God acts through a people: Vox populi, vox Dei. It is "the people considered in its entirety" that is the source of political "sovereignty." (Compendium, No. 395) How this sovereignty of the people is transferred or conveyed to public authority, to the organs of government, may vary. The Church allows for diverse regimes that are compatible with the customs, traditions, history, and values of a people. The people, however, in some fashion "preserves the prerogative to assert this sovereignty in evaluating the work of those charged with governing and also in replacing them when they do not fulfill their functions satisfactorily." This sovereignty resident in the people is something no law, no regime, no authority can take away. This "right" in the people is "operative in every State and in every kind of political regime." (Compendium, No. 395). The Church rejects the extreme authoritarianism of Hobbes or Bodin.

For this reason, the Church has recognized the unique value of democratic forms in the contemporary setting since democratic forms seem best to recognize and to allow for the expression of a people's sovereignty. A democratic form of government, "due to its procedures for verification, allows and guarantees [the] fullest application" of a people's sovereignty over its government. (Compendium, No. 395)

The people, however, though in possession of sovereignty, do not have this quality independent of God. For this reason, the "mere consent of the people is not . . . sufficient for considering 'just' the ways in which political authority is exercised." (Compendium, No. 395) No individual is exempt from the natural law. Likewise, no people is exempt from the natural law. The people are not the source of the natural law, and any authority in the people is exercised "under God."

There are times when the vox populi is not the vox Dei. We must not forget that the people chose Barabbas over Christ, and it was democracy in action that forced Socrates to drink his hemlock. Mob rule has never been a pretty sight. Sometimes, as Heraclitus so poignantly reminds us, the wise is one only, not many, and there is the law of one.*

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*Heraclitus, DK B32, DK B33 (ἕν τὸ σοφὸν μοῦνον λέγεσθαι οὐκ ἐθέλει καὶ ἐθέλει Ζηνὸς ὄνομα) (The wise is one only. It is unwilling and willing to be called by the name of Zeus.) and (νόμος καὶ βουλῇ πείθεσθαι ἑνός) (And it is law, too, to obey the counsel of one.)

Caesar and Christ: The Example of the Early Christian Church

THE BUDDING CHRISTIAN CHURCH found itself in unenviable circumstances, though we may believe it was all providentially determined to be in the fullness of time. Nevertheless, the young Church was persecuted by the Jewish religious authorities. More significant perhaps were the threats that the infant Christian community presented to the Roman empire, its allegedly "divine" emperor and his false pretensions to divinity.

To be sure, the Christian Gospel was revolutionary in a manner of speaking, particularly in its central doctrines--the Incarnation, the Crucifixion, the Redemption, the Resurrection, to name a few. These were a stumbling block to the Jews, and foolishness to the Gentiles. (1 Cor. 1:23)

Some of its practices, particularly some of its moral doctrines, were equally revolutionary. Perhaps this revolutionary mindset is best described by Tertullian in his Apologeticum: "All things are common among us but our wives."* The early Church had a countercultural notion of marriage and sexual morality. It also had a countercultural notion of solidarity, of community. With respect to private property it had what the Compendium has called the "universal destination" of goods. (Compendium, No. 178)

But when it came to civil authorities, the early Christian Church lived out the notion of the two kingdoms taught by Christ. Christ was her ruler, but she rendered those things to Caesar that were Caesar's. (Mark 12:17) But she rendered to Caesar not those things Caesar demanded, but only those things that were Caesar's. And the Church was the one who defined those limits,not Caesar. Incipient in this formula therefore were the seeds of persecution, inasmuch as the imperial Caesar resisted any limits on his power, especially limits imposed by what he viewed as an upstart Church. The divine Caesar would grow to hate the religion brought by the "Pale Galilean."

Nevertheless, the "party line" in the Church was submission to properly constituted authority. Not passive submission, and certainly not unthinking submission, but submission "'for the sake of conscience' (Rom.13:5) to legitimate authority," inasmuch as this was seen as responding "to the order established by God." (Compendium, No. 380)

Martyrdoms of Sts. Andrew, Paul, and Peter

If Ephesians Chapters 5 and 6 contains a Haustafel or rule for domestic order, then Romans 13:1-7 might be said to contain the Staatstafel or rule for relationship with civil authorities.

Let every person be subordinate to the higher authorities, for there is no authority except from God, and those that exist have been established by God. Therefore, whoever resists authority opposes what God has appointed, and those who oppose it will bring judgment upon themselves. For rulers are not a cause of fear to good conduct, but to evil. Do you wish to have no fear of authority? Then do what is good and you will receive approval from it, for it is a servant of God for your good. But if you do evil, be afraid, for it does not bear the sword without purpose; it is the servant of God to inflict wrath on the evildoer. Therefore, it is necessary to be subject not only because of the wrath but also because of conscience. This is why you also pay taxes, for the authorities are ministers of God, devoting themselves to this very thing. Pay to all their dues, taxes to whom taxes are due, toll to whom toll is due, respect to whom respect is due, honor to whom honor is due.

This is a frequent theme in St. Paul. We find it, for example, as part of his instructions to his friend and fellow bishop, St. Titus. "Remind them [his flock] to be under the control of magistrates and authorities, to be obedient, to be open to every good enterprise." (Tit. 3:1) He suggests, further, that St. Timothy have his flock offer "prayers, petitions, and thanksgivings . . . for kings and for all in authority." (1 Tim. 2:1-2)

St. Peter likewise stresses obedience to authority. "Be subject to every human institution for the Lord's sake," St. Peter states in his first epistle, "whether it be to the king as supreme or to governors as sent by him for the punishment of evildoers and the approval of those who do good." (1 Pet. 2:13-14) He gives a short motto to guide the faithful, clearly adverting to the two kingdoms, the kingdom of God, and the kingdom of Caesar. "Fear God, honor the king," τὸν θεὸν φοβεῖσθε, τὸν βασιλέα τιμᾶτε, Deum timete regem honorificate. (1 Pet. 2:17)

There is already in germ in the notions of St. Peter and St. Paul, a Christian political philosophy. Praying for those of authority--even an unfriendly authority--"implicitly indicates what political authority ought to guarantee: a calm and tranquil life led with piety and dignity." (Compendium, No. 381) Moreover, the "biblical message provides endless inspiration for Christian reflection on political power, recalling that it comes from God and is an integral part of the order that he created. This order is perceived by the human conscience and, in social life, finds its fulfillment in the truth, justice, freedom, and solidarity that bring peace." (Compendium, No. 383) Statecraft is soulcraft.

It is significant that St. Paul invokes conscience, and not principally fear of punishment, as a reason for obedience to civil authority. Similarly, St. Peter enjoins obedience, propter Dominum, "for the Lord's sake." Neither St. Peter nor St. Paul, however, must be seen as advocating the "passive obedience" doctrine which was advanced by 17th century "divine right" political theorists in Scotland and England, and certainly not the "active obedience" doctrine of Hobbes.** Recall that it is the same Peter who stated that he was compelled to obey God rather than men. (Acts 5:29) What they are advocating is "free and responsible obedience to an authority that causes justice to be respected, ensuring the common good." (Compendium, No. 380)

Both St. Peter and St. Paul, then, understood that there a limits to the authority and power of the State. "When human authority goes beyond the limits willed by God, [and] it makes itself a deity and demands absolute submission," it "becomes the Beast of the Apocalypse, an image of the power of the imperial persecutor 'drunk with the blood of the saints and the blood of the martyrs of Jesus' (Rev. 17:6)." (Compendium, No. 382)

This is visionary language, but it is not simply a dream. It is meant to inform the Christian:

This vision is a prophetic indication of the snares used by Satan to rule men, [the Beast] stealing his way into their spirit with lies. But Christ is the Victorious Lamb who, down the course of human history, overcomes every power that would it[self] absolute. Before such a power, St. John suggests the resistance of the martyrs; in this way, believers bear witness that corrupt and satanic power is defeated, because it no longer has any authority over them.

(Compendium, No. 382)

Though the New Testament has a positive view on human authority, it also issues forth something entirely new. As Voegelin puts it, Christianity "de-divinized" the temporal sphere and "de-divinized" the State. Politics was no longer the highest art. Man was meant for an eternal destiny, and this spiritual destiny, and the authority and power that related to it, was not in the hands of the State, but in the hand of the Church, to whom Christ, Lord of heaven and earth to whom all authority had been given, had given it. (Acts 17:24; Matt. 28:18)

Christ reveals to human authority, always tempted by the desire to dominate, its authentic and complete meaning as service. God is the one Father, and Christ the one Teacher, of all mankind, and all people are brothers and sisters. Sovereignty belongs to God.

(Compendium, No. 383) It should be however obvious that until Christ's second coming, that sovereignty, that authority, is exercised by representatives.

The Lord,however, "has not willed to reserve to himself all exercise of power. He entrusts to every creature the functions it is capable of performing, according to the capacities of its own nature. This mode of governance ought to be followed in social life. The way God acts in governing the world, which bears witness to such great regard for human freedom, should inspire the wisdom of those who govern human communities. They should behave as ministers of divine providence."***

(Compendium, NO. 383) (quoting CCC, § 1884)
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*Tertullian, Apologeticum, 39.11 ("Omnia indiscreta sunt apud nos praeter uxores.")
**Passive obedience is the political doctrine that held that it was not lawful, under any condition whatsoever, to take arms against the king or his agents, even if the King's law was believed to contradict the law of God. Though internal assent need not be given to an act considered against the law of God, and in extreme situations it could be disobeyed, it was always wrong to resist enforcement of the law, punishment, and incite rebellion. It was a central tenet of the Tory parties and the Jacobites in the 17th and 18th centuries. Hobbes would not even allow for passive obedience, and advanced the idea that a citizen owes active obedience to the absolute power of the states irrespective of the situation. See De Cive, xiv.23. St. Thomas Aquinas, who deals with the issue in his Commentary on the Sentences II, dist. 44, q. 2, art.2--distinguishes between authority, how it is acquired how, once acquired, it is used. Authority may be acquired legitimately or illegitimately (e.g., violence, bribery). Authority acquired unjustly or illegitimately may be resisted if there is an "opportunity," i.e., if prudent, at least up until such time as the authority becomes regularized through consent of the people or a higher authority. Legitimate authority may misuse its power because it acts "contrary to that for which the authority was ordained" (contrarium ejus ad quod praelatio ordinata est). If it orders obedience against the law of God, it must be disobeyed. If that authority acts ultra vires or beyond the scope of its authority (quia cogunt ad hoc ad quod ordo praelationis non se extendit), then "the subject is not held to obey, but neither is he held to disobey" (non tenetur obedire, nec etiam tenetur non obedire).
***This notion of political authority participating in Providence and having something of "its own" given to it by God is quite beautiful. It might be compared to Islam's negative and constraining view. Borrowing from Aristotle's Politics, St. Thomas Aquinas distinguishes between despotic and political rule in his Summa Theologiae: "For a power is called despotic whereby a man rules his slaves, who have not the right to resist in anyway the orders of the one that commands them, since they have nothing of their own. But that power is called political or royal by which a man rules over free subjects, who, tough subject to the government of the ruler, have nevertheless something of their own, by reason of which they can resist the orders of him who commands." S.T., Ia, q. 81, a.3, ad. 2. A Muslim is a slave of Allah: he is to submit to the law, the Shari'a which governs all areas of his life, no questions asked. Under St. Thomas Aquinas's distinctions, Allah is a despot, and his slave, the Muslim, has nothing of his own. There is no freedom even to participate in the Providence of Allah. Allah holds the reins of all power, and gives none to man. There is no discretion in the Shari'a, and it leaves no part of life to the human. On the other hand, Christians view God as quite different. God's Providence involves "political or royal" power, a power which rules over "free subjects," subjects who, though under God's governance, "have nevertheless something of their own." God, in other words, has given man something of his own, the ability to participate in law-making, so that the laws that human societies pass participate in the natural law, which in turn is the eternal law as it relates to God's governance of man. Muslims have nothing of their own. They are not free. They are ruled by a despot. Christians have something of their own--granted that something is a gift of God, but it remains something of their own. They are free. They are ruled by royal and political power, a power which seeks obedience of its subjects--not through violence--but through persuasion, through reason, through grace, through love.

Natural Law's Modern Cousin Germain: Authority

HOW IS IT THAT SOME LEGITIMATELY AND MORALLY claim to to have and exercise authority over others? And what is the extent, the boundaries beyond which that authority cannot go? Why does someone else have the right to pass laws that frustrate, nay even prohibit my choice in the exercise of practical reasonableness and selection of basic human values, or that punish me by loss of goods, loss of freedom, even loss of life if I act in a manner that the authority sees fit to proscribe? Why is it that some statements or propositions (say laws) are authoritative, and what, precisely, does that mean? For Finnis, authority and what is authoritative find their source in practicable reasonableness with particular reference to the common good. It is the common good that justifies both authority and its exercise and justifies those statements (laws) that are authoritative in providing guidance to our actions or in prohibiting certain actions. Finnis, we will see, rejects all "legal fictions" that are used to justify authority (e.g., transference from the people, social contract, general will, whatever it may be). He finds authority to be justified in nothing other than the common good's need of it and the common good's recognition of authority as effective for that end.

In the life in common with others, authority, it may be observed, is not only required to prevent against the stupidity, the incompetence, or the ill will and wrongful act of those within its boundaries (although the existence of stupid, incompetent, or morally bad actors may certainly justify its exercise). But even in the company of the intelligent, bright, and morally responsible authority is required as, for example, some scientific or religious community or fraternity. Even angels need authority, as do the devils. Authority is required to order a community, whether that community is composed of angels, devils, or a creature hovering somewhere in between as man seems to be. It follows that authority is something more than merely guarding against wrong, something more than just restriction or punishment. Authority is not only needed to guard against harm to common good, but it is required to enable any group of people to achieve its common purpose and common good. It has an affirmative role to play, not just a negative role. Indeed, the negative role is a reflection of its basic affirmative coordinating, instrumental role. Authority, moreover, may be positively required so that certain things can be decided upon and acted upon, e.g., the use of commonly held resources or the imposition and fair allocation of commonly-owed obligations, or the handling of disputes among its various members. The decisions that have to be made and the coordination that is required for a life in common requires authority, if for no other reason than that the only other possibility--unanimity of action--are, for any large group, impracticable and even impossible to attain.

John Fortescue (1394-1476)

Recognizing the need for authority, Finnis provides us a rather comprehensive definition of authority, focusing on its central case:

A person treats something . . . as authoritative if and only if he treats it as giving him sufficient reason for believing or acting in accordance with it notwithstanding that he himself cannot otherwise see good reason for believing or acting, or cannot evaluate the reasons he can see, or sees some countervailing reason(s), or would himself otherwise (i.e., in the absence of what it is that he is treating as authoritative) have preferred not so to believe or act.

NLNR, 233-34. Borrowing from the concepts of authority used by Joseph Raz, Finnis encapsulates this notion of authority by characterizing it as an "exclusionary reason," that is, a reason that substitutes for our own judgment or acting in the absence of, or in opposition to, our own reasons. This sort of thinking is redolent of the comment of Edward Coke, who defined law as "artificial reason." Authority, in this view, then is "artificial reasonable choice" that is recognized as somehow binding.

One immediately sees a problem with the definition. It is subjective and not objective. Cannot something be authoritative even though I do not recognize it to be so? If I be an atheist, can I really say that the Ten Commandments are not authoritative just because they are not in my perception authoritative? If I am a rapist, can I say that the criminal laws are not authoritative if I treat those laws that way? If I am a revolutionary, a rebel, acting against constituted authority based upon some Marxist ideology that makes be convinced in the illegitimacy of the regime to which I am opposed, does that mean that there is no authority? These propositions seem dubious and expose the weakness of Finnis's definition of what is authoritative. His definition fails to consider sufficiently any notion of objective authority, an authority that pends, remains, or binds even if the subject refuses to recognize it or obey it. There is an element of authority that remains unaddressed by his theory. This is not to say that his theory of authority is wrong, but perhaps it is not entirely complete.

Finnis then divides the definition of authority into three broad categories. These are based upon the perspective of the person who may say, "X is authoritative." The first, most full sense would be when the statement is made by one who recognizes that he is subject to that authority as, e.g., a citizen of the United States may say when he says that the "Constitution is authoritative." We might call this a statement of what the speaker subjectively holds to be valid authority. The second sense would be by one who does not himself consider himself bound by the authoritative statement, but reports that there are others who who are bound to see X as authoritative. So, e.g., a Russian professor may, in another sense from the first sense, tell his students that the U.S. Constitution is authoritative over the American citizen. He does not see himself bound by the authoritative statement, but reports that others are bound to the statement (that is, the Constitution) as authoritative.* He is reporting on what others see as valid authority. The third way of making that statement is more subtle. In this last sense, the speaker neither sees himself under the authority nor claims that others are under that authority, but states that there are some who from their perspective, whether they are making the claim of authority or subjecting themselves as authority, see the statement as authoritative. The difference between the second and third way is that in the second way the authoritativeness is endorsed as real or existing, whereas in the third way the perception of authoritativeness is neither endorsed nor rejected but simply reported as prescribed by someone or accepted by someone. The first two ways may be said to be "basic" or "primary" senses of reports of authority.

The distinction between authority as valid, authority as what others see as valid, and authority as what some, whether those in authority or those under that authority, claim to be valid is important to maintain against the positivist, who would focus only upon the first sense in devising his "concept" of what is law or what is authoritative. If a certain law is claimed to be authoritative in the first sense, but that law is against the common good, a positivist would claim that it makes no sense to talk about the proposition of law as being on the one hand authoritative (in the sense of it being valid) and yet on the other hand as not being authoritative (because it is against the common good). This is the same thing as saying that a law is valid and yet invalid, which would present a clear contradiction. But this is not what the advocate of natural law is doing. The advocate of a natural law jurisprudence when confronted with an unjust law would be criticizing something as authoritative in the second or the third sense and saying that though others may see the unjust law as valid or make the claim that it is valid, it in fact is not valid because it is against the common good. There is no contradiction when the sense of authoritative is used in the second or third senses. Something claimed as valid or viewed as valid may not in fact be valid if against the common good. The distinctions are obvious, and it is curious how the positivists miss the point.

Skipping over Finnis's laborious analysis of custom, we shall complete this review of Finnis's treatment of authority in his book Natural Law and Natural Rights by looking at his brief treatment of authority and its legitimacy. Finnis criticizes theories of authority that are based upon such legal fictions as transmission, contract, or custom (and, it goes without saying, divine right). He begins his analysis by observing that there is a practical need for authority, that the common good requires it, and that therefore it is a requirement of practical reasonableness:

The need for somebody, or some body, to settle coordination problems with greater speed and certainty [than custom] is apparent in any community where people are energetic and inventive in pursuit of their own or of common goods, not to mention any community threatened with military, economic, or ecological disaster.

NLNR, 245-46.

Authority and the responsibility for its application are thus based upon practical need, and their efficacy is an important aspect of its existence and justification. However, effectiveness "is not the last word on the requirements of practical reasonableness in locating authority." Nevertheless, effectiveness "is the first and most fundamental" part of authority and its exercise. An ineffective authority is no authority, and has lost its legitimacy. Efficiency or efficacy, it would appear, is therefore a necessary but not a sufficient condition.

The fact that that the statements (laws) of some body that is exercising authority are complied with and acted upon by a large number of people (i.e., that the statements are recognized as binding) is an important consideration in assessing their legitimacy and the moral obligation to obey. Clearly, when there is a large portion of the community of which one is part that recognizes certain pronouncements by someone or some body claiming authority as authoritative that fact is an important factor in practical reasonableness in establishing that authority's legitimacy. The moral issue of whether obedience is demanded and owed clearly comes into play when a large part of the community views obedience as owed. "These normative consequences derive from a normative principle--that authority is good (because required for the realization of the common good)." NLNR, 246. Again, however, this is not an absolute rule. The fact that obedience to some exercised authority is commonly accepted and therefore makes a claim to normativeness, does not make the "normative consequences" "indefeasible." There may be a presumption of legitimacy and moral normativity, but that presumption is rebuttable. For one, if the body that is exercising practical power that is recognized even by a large proportion of the common body is exercising it a manner that is against the common good--say a usurping tyrant who enriches himself and his family, or a Hitler who is using his power against the good of a certain segment of the community)--the fact that a large portion of the population accepts the authority does not translate to moral legitimacy. (One may call the fact that the authority is recognized or accepted by a large part of the population the empirical reality of authority.) The substance behind the exercise of authority (one may call this the moral reality of authority), and not the exercise of authority alone and its consent by others, is also factor in considering whether authority is legitimate or morally binding or not.

Finnis makes a distinction between "acquiescence" and "consent." In assessing the legitimacy of any authority, the fact that a large number "acquiesce" because of fear of sanction or other reason (such as personal gain, the leader's charisma, ideology) is substantially different from the fact that a large portion of the populations "consent" to the authority as good. External acquiescence versus internal consent is important to consider. A tyrant who has a cowering population acquiescing to his rule is different from a leader who has a willing population consenting to his rule.

What role does reference to prior authority have to that authority's legitimacy? Is authority like a land title or deed, whose claim may be assessed by investigation into the chain of title from grantor to grantee back to the conveyance to the sovereign? In other words, does the "legalistic" argument have any application to the issue of authority, or is it just a question of effective rule? If confronted with two claimants to the papacy, say and Urban VI and Clement VII, do I ask the question, "Which of the two men who claim to be pope is more effective?" Or do I ask the question, "Which of the two men who claim to be pope has the best claim to legitimacy under canon law?" How would I determine the pope from the antipope?

That question is more difficult than the issue of civil or secular authority because the papacy is of divine foundation, and is not one whose authority is obtained from the common consent of the Church members as secular authority is generally held to be. But, in any event, the example helps to formulate the question and see the issue involved, that being that efficiency is not the sole determination of legitimacy.

One possibility of legitimizing authority is to pin it upon prior authority, whether as a sort of inheritance from prior authority (e.g., a King's appointment of his heir or the dictator of his successor), or transference from the people through some sort of legal fiction, social contract, or custom. Finnis is critical of the received answers for determining properly constituted or legitimate authority. The standard answer is found, for example, in Cardinal Bellarmine's "transmission theory" as may be found in his Controversiarum de membris ecclesiae and which he translates as follows:

[Political] power is of divine right, but divine right did not give it to any particular man; therefore it gave it to the multitude. Apart from positive law, there is no greater reason why, out of many equals, one rather than another should dominate; therefore power belongs to the whole multitude.

Nam haec potestas est de jure divino. At jus divinum nulli homini particulari dedit hanc potestatem: ergo dedit multitudini. Praeterea sublato jure positivo, non est major ratio cur ex multis aequalibus unus portius, quam alius dominetur. Igitur potestas totius est multitudinis.

NLNR, 257 (quoting Bellarmine, Controversiarum de membris ecclesiae, III, c. 6 as translated by Yves Simon)

One may also find a similar idea in Francisco de Vitoria:

For divine and natural law require that there be some power to govern the commonwealth, and, in the absence of any positive or human law, there is no convincing reason that power should in one person versus another, and it is necessary that the power should reside in the community so that it may be able to govern itself.

Nam cum de iure naturali et divino sit aliqua potestas gubernadi rempublicam, et sublato communi iure positivo et humano, non sit maior ratio ut potestas illa sit in uno quam altero, necesse est ut ipsa communitas sit sibi sufficiens et habeat potestate gubernandi se.

NLNR, 257 (quoting De Potestate Civili, c. 7)**

Finnis rejects Bellarmine's transmission theory and finds it the result of a fallacy, specifically one arising from the notion that the community has authority over itself. If it has authority over itself it is because it is exercising unanimity, in which case it does not need a leader. If there is no unanimity (and it has no authority over itself, and so needs a leader), then it has no power to transfer to another. So when authority is needed the commonality has no authority to transfer, and when the commonality has unanimity and therefore plenary power, it has not need for authority. In Finnis's view, legal fictions such as social contract, custom, etc. are not required.

[T]he required state of facts is this: that in the circumstances the say-so of this person or body or configuration of persons probably will be, by and large, complied with and acted upon , to the exclusion of any rival say-so and notwithstanding any differing preference of individuals about what should be stipulation and done in the relevant fields of co-ordination problems.

NLNR, 249.

Finnis therefore adopts a functional view or test of authority, though he admits that perhaps people make take it as a "scandalously stark principle." That authority then passes laws, recognized by the population, for the transference or continuation of such authority. "[T]his tendency of political thinkers to utter legalistic fictions about the original location of authority has its excuse, and perhaps it occasion (but not a justification), in the urgent need to legalize the devolution of undevolved authority." NLNR, 250.

Finnis does enunciate two "riders" or caveats to his "scandalously stark principle" of authority. The first is that once the rules for devolution of power are fashioned, the population must--as a mandate of practical reasonableness--acquiesce (or withhold acquiescence) or comply (or withhold compliance) to the extent the person or body is (or is not) designated as the lawful holder of authority through the laws that handle the devolution of power. The second "rider" is that consent has a role: when a person or body's statements will be taken as authoritative "when a practical reasonable subject, with the common good in view, would think that he ought to consent to them." NLNR, 251.

These, Finnis observes, are riders, not fundamental principles. The fact is that most governments did not obtain the consent of the governed until after they first usurped the prior government, and obtained practical acquiescence.† Finnis quotes the jurist Sir John Fortescue, who stated that "amongst nearly all peoples, realms have come into being by usurpation, just as the Romans usurped the government of the whole world."†† And so whether it is the "law of nature" such as Sir John Fortescue would have it, or the "principles of practicable reasonableness that call for co-operative life in the wide 'political' community, and for the authority that alone makes that life practicable," as Finnis would have it, the fact that we live under a functioning government is reason alone to give it--subject to the riders mentioned by Finnis--legitimacy. The fictions of transference from the people, social contract, etc. are simply not needed. A functional or pragmatic sanction is good enough; a sanction through sufferance is sufficient. Whether the authority was originally acquired through adverse possession or through legitimate title is immaterial: if it's working at the present, the common good and principles of practical reasonableness require that we respect it as legitimate and worthy of support and obedience.

Once the legitimacy and foundations of authority are established, Finnis turns to law. And that is where our attention shall now turn.
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*A professor in the U.S. could also say to his law students that the "U.S. Constitution" is authoritative over the citizens of the United States," in the sense of the Russian professor if he abstracts himself or brackets himself from his position as citizen.
**The translation is mine. Curiously, the Cambridge translation of Vitoria's work On Civil Power translates "iure positivo et humano" as "human elective franchise (suffragium)," but unless there is a variance in the underlying texts, the Latin quoted by Finnis has nothing to say about elective franchise or suffragium.
***Belarmine's works in Latin are available at Sydney Penner's web page: see Bellarmine's Works.
†This is true even of the U. S. Constitution which most scholars recognized went far beyond the original mandate given to the Constitutional Convention to amend the Articles of Confederation and not to draft an entirely new Constitution, and so, in some ways, could be argued as a product of an illegal convention. But in light of the overwhelming consent to its legitimacy, it would be foolish at best to suggest that it was not, in fact, binding on the conscience of any American. And that does not even consider the fact that it was the result of a rebellion against legitimate authority, perhaps one (that at least in the loyalists' eyes, and certainly in the eyes of King George and his advisors) illegitimate and treasonous.
††John Fortescue, De Laudibus Legum Angliae, c. 12: Sic et Romani orbis imperium usurparunt, qualiter fere in omnibus gentibus regna inchoata sunt.

Pope Leo XIII on Socialism: Quod apostolici muneris

THE NATURAL LAW ALSO PROVIDED the foundation for Pope Leo XIII's encyclical on socialism, Quod apostolici munerus which was issued in 1878. In that encyclical, Leo XIII set himself against "that sect of men, who under various and almost barbarous names, are called socialists, communists, or nihilists." QA, 1. Socialists, communists, and nihilists "leave nothing untouched or whole which by both human and divine laws (quod humanis divinisque legibus) has been wisely decreed for the health and beauty of life." Spurning, then, the influence of natural and divine law, socialists "proclaim the absolute equality of all men in rights and duties." shunning any differences between the ruler and the ruled. On the domestic, familial front, they "debase the natural union of man and woman," naturalem viri ac mulieris unionem . . . dehonestant, and weaken its bond, vinculum . . . infirmant. They therefore weaken if not altogether sever the authority of the father as head of the family, and relationship between husband and wife, and between parents and children. Driven by their materialistic philosophy, they "assail the right of property sanctioned by natural law," jus proprietatis naturali lege sanctitum impugnant, which leads them "seize and hold in common whatever has been acquired either by title of lawful inheritance, or by labor or brain and hands, or by thrift in one's mode of life." QA, 1. It is these three errors--a false egalitarianism, a false notion of marriage and family life, and the rejection private property--that Leo XIII addresses in his encyclical Quod apostolici munerus. It is these three errors that come in the wake of the "plague of socialism," pestis Socialismi advanced by this "abominable sect," secta abominata. Cf. QA, 10, 11.

Fundamental Tenets of Socialism Against the Natural Law

As with much of our modern philosophical ills, Leo XIII finds the seed of socialism in the 16th century, specifically in the error of philosophical rationalism. Socialism (with which term we will use to include communism and political nihilism) is nothing less that a form of political rationalism. Rationalism, which entails a false, materialistic notion of reason, is intended to subvert revelation and to "overthrown the supernatural order." QA, 2. Disdaining religion and disdaining God, rationalism in the political realm has sought to found political institutions on the will of the people alone, without regard to God or his order. Under the guise that supernatural truths are hostile to reason, political rationalists have sought to remove from any public institution--including universities, the lyceums, the gymnasia--any mention of God and the supernatural order. Their view of life is entirely here-and-now, "limited to the bounds of the present," and gives utterly no weight to the concept of eternity or to "the rewards and punishments of a future and eternal life." QA, 2. In fine, they live sub specie temporis, under the light of the here-and-now, and not sub specie aeternitatis, under the light of eternity. And this they do even while "stealing the very Gospel itself with a view to deceive more easily the unwary." QA, 5. Like the devil who quoted scripture to tempt Christ, so do socialists frequently invoke alleged evangelical values while actually subverting them.

Socialists advocate in a sense altogether false "that nature has made all men equal," and so reject any office or laws or relations that are not predicated on their radical egalitarianism. While Pope Leo XIII acknowledges that the Gospel teaches an equality among men, the Gospel's notion is different from the equality advocated by the socialist:

[I]n accordance with the teachings of the Gospel, the equality of men consists in this: that all, having inherited the same nature, are called to the same most high dignity of the sons of God, and that, as one and the same end is set before all, each one is to be judged by the same law and will receive punishment or reward according to his deserts.

Contra vero, ex Evangelicis documentis, ea est hominum aequalitas, ut omnes eamdem naturam sortiti, ad eamdem filiorum Dei celsissiman dignitatem vocentur, simulque ut uno eodemque fine omnibus praestituto, singuli secundum eamdem legem iudicandi sint, poenas aut mercedem pro merito consecuturi.

QA, 5. Outside of this equality among men--an equality of human nature and an equality of our supernatural calling--there are palpable inequalities among men: and indeed, the inequality among men in these other particulars is part of the plan of God, especially the inequalities arising out of the relationship between those who govern and those who are governed.

The inequality of rights and of power proceeds from the very Author of nature, "from whom all paternity in heaven and earth is named." (Eph. 3:15)

Inaequalitas tamen iuris et potestatis ab ipso naturae Auctore dimanat, ex quo omnis paternitas in caelis et in terra nominatur.

QA, 5. Depending upon office, station, relation, and right order there may be various duties and rights, and so one person (for example a ruler, a bishop, or a father) will have rights over as well as duties to another (e.g., his subject, a layman, or a son), even while the latter (e.g., the subject, the layman, or a son) has rights over as well as duties to the former (e.g., the ruler, or a bishop, or a father).

For, He who created and governs all things has, in His wise providence, appointed that the things which are lowest should attain their ends by those which are intermediate, and these again by the highest. . . . [God] appointed that there should be various orders in civil society, differing in dignity, rights, and power (plures esse ordines, dignitate, iuribus, potestate diversos), whereby the State, like the Church, should be one body, consisting of many members, some nobler than others, but all necessary to each other and solicitous for the common good."

QA, 6.

Rulers are answerable to God for the use of their power. So does the book of Wisdom warn us: "For a most severe judgment shall be for them that bear rule," should they judge rightly or fail to keep the law of justice. Wisdom 6:6. Rebellion against even a rash and tyrannical ruler must not be countenanced ordinarily since to "allow an insurrection on private authority" results in greater ills not only because public order would be "only the more disturbed," but also because society would run the risk of taking "greater hurt therefrom." Therefore, even patience toward tyranny befits concern for the common good. Insurrection is not something to be engaged in lightly. There is, however, one exception:

But, if the will of legislators and princes shall have sanctioned or commanded anything repugnant to the divine or natural law, the dignity and duty of the Christian name, as well as the judgment of the Apostle, urge that "God is to be obeyed rather than man." [Acts 5:29]

Quod si legislatorum ac principum placita aliquid sanciverint aut iusserint quod divinae aut naturali legi repugnet, christiani nominis dignitas et officium atque Apostolica sententia suadent obediendum esse magis Deo quam hominibus.

QA, 7.

With respect to marriage and family life, Leo XIII insists that civil society, in particular the State, must recognize the importance of the family:

Even family life itself, which is the cornerstone of all society and government . . . . [T]he foundation of this society rests first of all in the indissoluble union of man and wife according to the necessity of natural law, and is completed in the mutual rights and duties of parents and children, masters and servants.

[E]tiam domestica societas, quae omnis civitatis et regni principium est . . . . Rectam hujus societatis rationem, secundum naturalis juris necessitatem in indissolubili viri ac miilieris unione primo inniti, et mutuis parentes inter et filios, dominos ac servos offîciis iuribusque compleri.

QA, 8.

The socialists "strive almost completely to dissolve this union," this fundamental cell of society. In particular they seek to remove any religious element from it, rejecting both its natural order and the Church's authority over it. This necessarily weakens the headship of the father over his wife and family, the authority of the parents over their children, and the reciprocal duties of the children to their parents. QA, 8. The family is a subtle instance of hierarchy within love and love within hierarchy.

Wherefore, as the Apostle has it, [Eph. 5:23] as Christ is the head of the Church, so is the man the head of the woman; and as the Church is subject to Christ, who embraces her with a most chaste and undying love, so also should wives be subject to their husbands, and be loved by them in turn with a faithful and constant affection. In like manner does the Church temper the use of parental and domestic authority, that it may tend to hold children and servants to their duty, without going beyond bounds. For, according to Catholic teaching, the authority of our heavenly Father and Lord is imparted to parents and masters, whose authority, therefore, not only takes its origin and force from Him, but also borrows its nature and character. Hence, the Apostle exhorts children to "obey their parents in the Lord, and honor their father and mother, which is the first commandment with promise"; [Eph. 6:1-2] and he admonishes parents: "And you, fathers, provoke not your children to anger, but bring them up in the discipline and correction of the Lord." [Eph. 6:4] Again, the apostle enjoins the divine precept on servants and masters, exhorting the former to be "obedient to their lords according to the flesh of Christ . . . with a good will serving, as to the Lord"; and the latter, to "forbear threatenings, knowing that the Lord of all is in heaven, and there is no respect of persons with God." [Eph. 6:5-9] If only all these matters were faithfully observed according to the divine will by all on whom they are enjoined, most assuredly every family would be a figure of the heavenly home, and the wonderful blessings there begotten would not confine themselves to the households alone, but would scatter their riches abroad through the nations."

QA, 8.

Controversial as it may modernly be, Pope Leo XIII clearly promotes the continuing validity of the so-called Haustafel, the "Domestic Code" found in St. Paul's Epistle to the Ephesians (5:22-6:5) and also in St. Paul's Epistle to the Colossians (3:18-41) and in St. Peter's First Epistle (1 Pet. 2:18-3:7).*

From marriage and the family, Pope Leo XIII addresses the socialists' rejection of private property. Basing itself on "the precepts of natural and divine law," the Church's doctrine concerns itself with the public and private good regarding the duty of government and the distribution of the goods that are necessary for human life and its flourishing. Socialists reject the natural right to private property, finding it to be an invention of man, a mere convention:

For, while the socialists would destroy the "right" of property, alleging it to be a human invention altogether opposed to the inborn equality of man, and, claiming a community of goods, argue that poverty should not be peaceably endured, and that the property and privileges of the rich may be rightly invaded, the Church, with much greater wisdom and good sense, recognizes the inequality among men, who are born with different powers of body and mind, inequality in actual possession, also, and holds that the right of property and of ownership, which springs from nature itself, must not be touched and stands inviolate.

Cum enim Socialistae ius proprietatis tamquam humanum inventum, naturali hominum aequalitati repugnans, traducant et communionem bonorum affectantes pauperiem haud aequo animo esse perferendam, et ditiorum possessiones ac iura impune violari posse arbitrentur; Ecclesia multo satius et utilius inaequalitatem inter homines, corporis ingeniique viribus naturaliter diversos, etiam in bonis possidendis agnoscit, et ius
proprietatis ac dominii ab ipsa natura profectum, intactum cuilibet et inviolatum esse iubet.

QA, 9.

That private property is recognized by revelation is clear from the divine laws against stealing and robbery. But the right to private property ought not to be grounds or excuse for neglecting the poor. On the contrary, the Church insists that they ought to be cared for, and she is constantly enjoining upon the rich "that most grave precept to give what remains to the poor; and she holds over their heads the divine sentence that unless they succor the needy they will be repaid by eternal torments." QA, 9. There is, to be sure, "the old struggle between the rich and the poor," but it is not solved by rejecting private property. The best method would seem to be the Christian formula which demands that the rich, like Christ, become poor for the sake of their brothers, and the poor recognize the blessings that Christ has put upon the sufferings of the poor and the rewards of eternal life.

[I]f this method is rejected or disregarded, one of two things must occur: either the greater portion of the human race will fall back into the vile condition of slavery which so long prevailed among the pagan nations, or human society must continue to be disturbed by constant eruptions, to be disgraced by rapine and strife, as we have had sad witness even in recent times.

QA, 9.
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*The Church continues to insist on the paternal headship of the family and the complementarity of the masculine (paternal) and feminine (maternal) roles in the family, but, especially during the pontificate of John Paull II, has elaborated the radical Christian concept of subjection, making it clear that "subjection" must not be understood as the world understands it. A good discussion of the Scriptural, Patristic, and Magisterial teaching on the headship of the father in the family may be found in the article The Authority of the Husband According to the Magisterium by Rev. Paul N. Check.

St. Thomas Aquinas: Definition of Law, Authority

THE COMMON GOOD is the "first and foremost" (primo et principaliter) ordering which underlies law. We explored this in yesterday's posting. The fact that law is ordered is toward the common good suggests that only the "whole people" (totius multitudinis) who will be governed by it. Naturally, the "whole people" can be represented by someone who acts in their place and in their interest, a "viceregent" (gerentis vicem totius multitudinis). How the authority of the "whole people" is conveyed to any particular "viceregent" is not addressed by St. Thomas in these series of questions in the Summa Theologica. But regardless, it is the publically-recognized authority that has the right to issue laws. Reason alone does not make law, and so it does not belong to an individual qua individual to make law; it must be the reason of those in authority that makes law. ST IaIIae, Q. 90, art. 3, resp.

St. Thomas agrees with Aristotle that the intention of the lawgiver ought to lead men to virtue. Aristotle, Nicomachean Ethics, ii.1 Though an individual man (say a teacher, or priest) can held lead a man to virtue, unlike the lawgiver he has no coercive power to create an efficacious inducement to a life of virtue. Nicomachean Ethics, x. 9. Similarly, though a father may be head of his family, and he may issue orders or commands (aliqua praecepta vel statuta), these are not properly called laws (lex). Only the whole people, or the person to whom the whole people have assented to act on their behalf, have the authority to compel obedience, and, in a manner of speaking, to lead the population to virtue. ST IaIIae, Q.90, art. 3, resp.2, 3. That authority is found in a perfect community or society (communitas perfecta). ST IaIIae, Q.90, art. 3, resp.3.

Note:

The term "perfect society" or "perfect community" referred to by St. Thomas Aquinas does not mean a utopia, such as described by St. Thomas More in his Utopia, or by Plato in his Republic. This term is used differently in this context. The concept of the "perfect society" or "perfect community" (societas or communitas perfecta) in this context is one associated with political philosophy. A perfect society is a group that is self-sufficient or independent in its realm and has all necesary resources and conditions required to achieve its purposes. A society must thus be perfect in its end and in its means. A society perfect in its end is a society with a human purpose, complete and entire, that is, within its own order, sovereign, and so not subordinate to any higher good. A society perfect in its means is a society that has within its possession and control the means by which to achieve this purpose. In both end and means, the State is a perfect society, as is the Church founded by Christ. In his Apostolic Letter issued motu proprio and entitled Sollicitudo omnium ecclesiarum (1969), Pope Paul VI gave a good summary of the concept:

It is indisputable that the ends of Church and State belong to different orders, and that both are perfect societies, that is to say, they are independent in their respective spheres of action, and have proper means to achieve those ends. They possess their proper jurisdiction and all necessary means to achieve their ends. On the other hand, it must not be overlooked that they are both aiming at a similar welfare, namely that the people of God is to obtain eternal salvation . . .

Neque est infitiandum finem Ecclesiae et Rebus Publicis propositum diversi esse ordinis, atque Ecclesiam et Civitatem, in suo cuiusque ordine, esse societates perfectas, ac propriis inde pollere iuribus et mediis, suisque uti legibus, quacumque uniuscuiusque patet provincia. At verum est etiam utramque ad communis subiecti utilitatem agere, scilicet hominis, a Deo vocati ad salutem adipiscendam aeternam . . . .

Click here for a copy of Paul VI's motu proprio, Sollicitudo Omnium Ecclesiarum.