Cardinal Mercier and the Natural Law, Part 20: The Christian Concept of the State

LEAVING THE ERRORS of the pantheistic, social contract, liberal, and organic theories of State behind him, Mercier then provides a Christian conception of the State, one predicated basically upon a classical notion of natural law, corrected, as it were, by the revelation of Christ. There are several operative truths that the Christian conception of State seeks to maintain, truths about the nature of the individual and the nature of civil society.

"The individual," Mercier begins, "is by nature a personal and social being." [335(114)] The fact that man is a personal being, that is a person, has great importance. It is the dignity of his end which gives dignity to his personhood.

[Man] has been created for an end which excels every other end, since it is identical with God Himself, inasmuch as He is the object of knowledge and love of mankind. Such an end implies the perfection and the happiness of the rational creature: his perfection, because the knowledge of God is the highest to which we can attain, and the love which this inspires is the most noble of all; his happiness, because the possession of this object appears as the goal of the deepest aspirations of the human soul.

[335(114)] Manifestly, the Christian notion of man, which it shares with classic natural law theory (e.g., Aristotle and Stoics) is world's apart from the selfish, Hobbesian view of man, the individualistic Rousseauian view, the materialistic view of Spencer, or the oddly minimalistic and State-dominated view of Hegel. Of course, Christianity adds a further dignity to man, and assures mankind of a supernatural destiny that is not contrary to his natural destiny, but which, in comparison, makes the natural destiny virtually blanch with inferiority.

[T]he idea of the personality of man is logically bound up with one of the essential dogmas of the Christian religion, namely, the dogma of his supernatural destiny. Being children of the same Father who is in heaven, redeemed by the same Saviour, called to the same celestial inheritance, men are all brethren and possessors of the same essential rights. In this we have the true idea of human personality.

[335(114)]

Though each man is a personal being, and so, to that degree, each man has equal dignity in relation to another man, it is also true that man is a social being. This is the teaching of the Doctors of the Church along with the best of the pagans, Plato and Aristotle, for example. The social nature of man is particularly manifest in the institution of the Church, which incorporates each man into the Body of Christ.

[B]y its visible organization, by its precepts of justice and of charity, by its dogmas of the divine Fatherhood, original justice, redemption and communion of saints, the Christian religion proclaims the solidarity and, consequently, the sociability of all mankind.

[335(114)] Christianity therefore promotes individual personality, without ignoring the communal aspects of human life. It does not fall into an impersonal collectivity, but neither does it promote an artificial and lonely individuality.

Christ Dividing Church and State

Both civil society and the State are therefore great goods. However, they are goods ordered and subordinate to the natural and supernatural destiny of man. As such, they are not absolute.

Civil society or the State is not a superior being, some transcendental reality having an ends of its own. it is constituted by the personal members who unit to form it; but yet it is not exclusively the product of their individual wills. Its foundation is indeed nature.

[335-36(115)] Since it finds its foundation in nature, it follows that its rights and its duties find ultimate support or foundation in nature, that is the moral law, itself. Civil society and the State, since they are natural in origin, must also advance, not retard or diminish, human nature's flourishing in a moral sense above all. Nature, however, does not inform us what form the civil society or the Sate must take. That determination appears to be left upon the will of men who have bound themselves in a society. What nature does supply is the instinct and the need in man for some sort of social organization, and that social organization, to be effective, presupposes "another, more august than nature." [336(116)]

The State, then, because demanded by nature, organized by man, willed by God, is at one and the same time an institution natural, human, and divine.

[336(115)] How so divine? "Society exists by the will of God, and therefore obedience of subjects to its authority is by the will of God . . . ." [336(116)] Man is give the power to determine, based upon circumstances, the form by which the State is to administer its authority over civil "As, then, the natural law is the foundation of the rights possessed by the individual and family, it follows that these rights must be respected by the public power."
--Cardinal Mercier
society. "Any form of government is lawful so long as it is properly adapted to fulfill the mission of the State." [336(116)] So the form of the government of the State is to be distinguished from the authority of the government of the State. "Let every soul be subject to higher powers: for there is no power but from God: and those that are, are ordained of God." (Rom. 13:1) Since authority stems ultimately from God, it follows that the State has no authority to act against nature, against the moral law, against the interests of civil society or, more particularly, against the interests of man. "Civil society exists for the sake of the individuals composing it." [336(17)]

To provide the general conditions for our happiness and for our perfect development, conditions which we cannot establish and maintain by isolate effort, is the end of civil society, namely, the common weal. Hence the role of the public authority in the society is none other than to direct it towards its end. . . . [T]he first function of authority is to secure that our rights are respected. But it has a further duty to discharge as part of its mission: the common weal consists not only in the absence of injustice, but it also presupposes a state of affairs such as will favour the full exercise of the individual's rights and further the proper development of his faculties. . . . This is what is mean when the State is described as having 'civilization' as its mission.

[336-37(117)]

The State is in no way absolute. It must recognize and is subordinate to the rights of individual, of the family, and of religious society. Ultimately, it is subject to the natural law. Indeed:

The will of the State is supreme and its commands obligatory only in so far as they are in conformity with the natural law, which is the expression of the divine Will . . . As, then, the natural law is the foundation of the rights possessed by the individual and family, it follows that these rights must be respected by the public power . . . . From this may be judged the 'civilizing mission' of the State.

[337(118)] Since a man's self-development is his own work, and not anybody else's work, it follows that the State must allow for private initiative. It must not suppress private action; rather, it ought to encourage it, foster it, nurse it in every possible way. With its strong understanding of human personality and human dignity, the Christian notion of the state opposes the collectivist's ideal. Similarly, the State must recognize the pre-existing natural rights of the marriage state and the family, both natural institutions over which the State has no power other than in their civil effects. "Founded on this [natural]basis, the family enjoys a juridical existence that is independent of the civil law." [337(118)]

Since the advent of Christianity, a third restriction has been placed on government. Before the coming of Christ, religious authority was intermixed with civil authority. The founder of Christianity clearly intended to form a society separate from the State, namely, the Church. By establishing the Church, Christ clearly intended to free the individual conscience from the yoke of secular power. The conscience is not however free in the sense of anarchy. It was not loosed to be outside the pale of law, and so it is "under another power, but this is a spiritual one, whose influence is essentially not one of constraint but of persuasion." [338(118)]

By proclaiming the incompetence of the State in the governance of the soul and the essentially voluntary character of the act of faith, Christianity has laid the foundations of true liberty of conscience. . . . The separation of this twofold jurisdiction and the voluntary nature of the act of faith come from the Founder of the Christian religion.

[338(118)]

Cardinal Mercier

But all this Christian political philosophy has been rejected, spurned. It is not part of the public square. The separation of Church and State, which has evolved into secular dogma, a convenient one for the State that since the Protestant reformation has progressively been elbowing out the Church, has kept any semblance of natural law or Christian political philosophy at bay. At best, it is found in books, in catechisms, in Papal encyclicals, or in blogs, but in no other place on earth. Apparently, we prefer liberalism, and we are paying the moral and the social costs associated with that bad choice and that pact with that liberal of all liberals, that libertine known as the Devil.*

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*Cf. Leo XIII, Libertas Praestantissimum, No. 14: "But many there are who follow in the footsteps of Lucifer, and adopt as their own his rebellious cry, I will not serve; and consequently substitute for true liberty what is sheer and most foolish license. Such, for instance, are the men belonging to that widely spread and powerful organization, who, usurping the name of liberty, style themselves liberals."

Cardinal Mercier and the Natural Law, Part 19: Rights of the State

THE TERM RIGHTS OF THE STATE has an unfamiliar ring to it, but it is shorthand for the ensemble of "juridical [legal] relations which unite the governed to the governing power in the civil society." [325(106)] Within this division, and under the guidance of a natural law philosophy, Mercier explores the nature, origin, and end of the State. He asks what the functions of public authority ought to be, and in what form those functions ought be assumed and exercised. Mercier addresses the rights and duties of citizens to the State, the principles that ought to govern international relations, and the relationship between the civil society and the religious society. "All these questions . . . belong to the sphere of the philosophy of Natural Law." [325(106)] The answers to those questions are all predicated upon the theory of the State that one adopts.

The first matter addressed by Mercier is the various theories of the existence of the State. He reviews some of the main theories that are outside the classical natural law tradition: (1) a pantheistic view of the State (Plato, Hegel, Schelling, Fichte); (2) the view of the State as an institution of positive divine right (such as that advanced by Filmer or Bodin); (3) the view that the State is a creature of social contract alone (Hobbes, Rousseau); and (4) the view of the State as a social organism (Lilienfeld, Schäffle, Spencer). Finally, as against all these other theories, he discusses the rival Christian, that is natural law, conception of the State.

The pantheistic theory of the State is probably not much held modernly, and it is difficult to conceive that it was ever advocated in earnest. But it was. In some sense, Plato may be viewed as being its originator. In our day, we can trace this view largely to the philosopher Georg Wilhelm Friedrich Hegel (1770-1831).

Plato's philosophy, specifically his ontology, had the "germ of pantheism." He saw the entirety of the cosmos informed by "a kind of psychic principle," of which individual's soul was "but an emanation." This view, coupled with the notion that universal ideas correspond to universal essences in the divine wrap up all things in a pantheistic blanket. These underlying metaphysical presuppositions inform his ideal state in his Republic. After all, the state is viewed as the cosmos writ large, and the state as the soul of man writ large. Thus they are all intimately joined and linked in one pantheistic chain of being. For Plato, justice was tied to harmony and unity. "Liberty and the traditional philosophy of man's spiritual nature stand or fall together."
--Cardinal MercierAccordingly, the role of reason was to harmonize and unify the various human faculties. Similarly, the role of the city state was to harmonize and unify its citizens into one body corporate of the City-State. This required a subordination of the individual to the City-State. Anything that could present itself as a threat to the unification was suspect, and so intermediate institutions such as the family, private property, and idiosyncratic activities such as poetry and so forth had to be banned from Plato's ideal state. (It is this tendency in Plato, noted by Mercier, that led Karl Popper to identify Plato (along with Hegel and Marx) as one of the traditional enemies of the "open society".) But even Plato, in his extremity, cannot be said to have "identif[ied] the State with the deity of the universe," though he came awful close. [326(107)] The same cannot be said for Hegel.

Portrait of Hegel by Jakob Schlesinger (1792-1855)

"With Hegel, who here follows Schelling and Fichte, the case is otherwise. . . .[I]n his later writings he professed the completest pantheism." [326-27(107)]

'The State', he says, 'is the social substance that has arrived at self-consciousness . . . . It is the rationnel* of itself and for itself . . . it is a terrestrial divinity.' Here we find the State has become an aspect of the Absolute which, according to Hegel, is the common substrate of all things, the universal substance, of which individual beings are but so many modes or determinations.

[327(107)] (quoting Hegel's Philosophy of Right) For Hegel, the State, being in essence divine, lives for its own ends, and not for the common good. "Hegel's answer is that the State must be viewed as an organic and living unity having its own subsistence as its one end." [327(107)] Similarly, the State is the source of all right:

[S]ince [the State] is the divine being, its will must be the sovereign law, the source of all rights and all duties. Therefore against its decisions no individual right founded on nature can be of any avail.

[327(107)] This divinization of the State is a serious lapse into paganism because it absolutizes the State. One of the boons of Christianity was to force a separation between the secular State and the religious life of man (the Church). Christianity thus demoted the pretensions of an absolute State, and it would seem that the State, like a man with a heart darkened by the bitterest desire for vengeance, has been unforgiving since that time, biding its time and nursing its wounds until it could destroy the Church and re-assume the powers that Satan would give it.

Charles I by Unknown Artist Receiving His
Divine Right to Rule Immediately from God
(National Portrait Gallery, London)

Another theory of the State is what may be called the "divine right" theory. Stemming from 17th century jurisprudence, it held the monarchy to be appointed by God himself in an office of divine right. Thus the prince was responsible not to his subjects, but to God alone. As if by divine election, the monarch was chosen from the mass of men and given special authority by God. Not only was he given authority directly from God, but apparently as part of it the power to cure his subjects of scrofula, known thereby by the moniker "the King's evil."**

The political interest of the monarch, namely, the consolidation and extension of his power, dominates all other interests. He is known as the 'raison d'Etat' Before his superior claims the rights of the individual must yield.

[328(108)] Such a theory of government is largely Eastern in inspiration. "Its origin is not Christian." [328(108)] Obviously, such a theory is not held by anyone modernly. One need only read the work of Sir Robert Filmer (1588-1653) to see the risibility of such a theory. Another advocate of the theory was Jean Bodin (1530-1596). It is of merely historical interest currently.

The social contract theory of the State is probably the view held by a majority of political theorists currently since it is at the heart of political liberalism. Although there is great variety among advocates of this theory, the essential kernel shared among all of them is that "civil society owes its rights to a contract, either expressed or tacit, that has been freely entered into by its members." [328(109)]

Hobbes is an early advocate of the concept, but his theory has a decided monarchical slant, although his theory may be translated and mutated to the power of an absolute State of other stripes.

Portrait of Jean Jacques Rousseau in Armenian Dress

Rousseau was the theory's great popularizer and democratizer. Rousseau's writings, however, resulted in a dichotomous interpretation. On the one hand, Rousseau gave birth to an individualistic notion of the social contract theory, where the State's role was by common agreement or contract stipulated to be one that would allow men to express their autonomy, free of any extrinsic influence. What was originally the fruit of rationalism in thought (philosophy) and morality and religion (i.e., autonomy), found its expression in political theory. "There it fostered liberalism, and drew conclusions from the theory of the social contract which were directly opposed to those of Hobbes." [329(111)]

Essentially, any social contract theory of the State makes the institution's origin entirely human. It is formed by consent of men, and God has nothing to do with it. The social contract theory is the basis for the modern school of political liberalism, as from this theory it has borrowed two fundamental tenets. The first principle liberalism has borrowed is the legal basis of public authority. The second principle borrowed from the social contract theory relates to the purpose of the State.

Liberalism, along with the social contract theory, believes that the "free consent of individuals is the one and only source of all lawful authority." Thus the State and law finds its ultimately source in human consent, human contract, and it is therefore independent of any divine law. Public authority is viewed as limited by agreement or compact. Its role is to assure the greatest possible freedom among its citizens, without regard to morality or to nature.

As it is contrary to the principle of rationalism to accept any guidance from constituted authority alike in matters intellectual as well as moral, so it is consistent to assert that the function of the State is not in any way to direct the action of individuals as regards any ideal whatever, but simply to safeguard them from all obstacles that would hinder their free development. Accordingly the function of the State is not to civilize, but only to guarantee that the rights and liberty of the citizens shall be protected.

[330(111)] This is the path that Kant took: "As an advocate of the principle of the autonomy of reason, he gives us the conception of the State as the mere guardian of the rights of the individual." [330-31(111)] All this liberalism, shunning the World's enchantment, ignores God's Grandeur. But:

The world is charge with the grandeur of God.
It will flame out, like shining from shook foil;
It gathers to a greatness, like the ooze of oil
Crushed. Why do men then now not reck his rod?
Generations have trod, have trod, have trod;
And all is seared with trade; bleared, smeared with toil
And wears man's smudge and shares man's smell: the soil
Is bare now, nor can foot feel being shod.

And for all this, nature is never spent;
There lives the dearest freshness deep down things;
And though the last lights of the black West went
Oh, morning, at the brown brink eastward, springs--
Because the Holy Ghost over the bent
World broods with warm breast and with ah! bright wings.***

Liberalism has trod, and trod, and trod, and has lost its sense of truth and freedom. It wallows in self-indulgence, and revels in pollution of all sorts, especially social pollution like pornography, homosexuality, dead babies, ruined families, and ruined marriages, the empty shells of which are found anywhere it has had some say. Its expression in classical liberalism, of the laissez faire type, has not been particularly edifying either. The waste, the disregard for the world's resources, the disrespect for nature and the environment, the social and chemical dross left behind by Adam Smith's "invisible hand" is disheartening. How much beauty been have the grasping industrialists destroyed by careless exploitation of the world's resources?

My aspens dear, whose airy cages quelled,
Quelled or quenched in leaves the leaping sun,
All felled, felled, are all felled;
Of a fresh and following folded rank
Not spared, not one
That dandled a sandalled
Shadow that swam or sank
On meadow & river & wind-wandering weed-winding bank.

O if we but knew what we do
When we delve or hew —
Hack and rack the growing green!
Since country is so tender
To touch, her being só slender,
That, like this sleek and seeing ball
But a prick will make no eye at all,
Where we, even where we mean
To mend her we end her,
When we hew or delve:
After-comers cannot guess the beauty been.
Ten or twelve, only ten or twelve
Strokes of havoc unselve
The sweet especial scene,
Rural scene, a rural scene,
Sweet especial rural scene****.

The other prong of Rousseau's thought took a decidedly less liberal path, and expressed itself in the notion of the "General Will" and the absolutism of a democratic state. Rousseau attributes to the general will qualities of absolute sovereignty, indefectibility, and infallibility, and by a sleight of hand, though it is but the will of the majority, makes it by transference the will of each individual. As it turns out, under this branch of Rousseauism, it is "law or, more accurately, the will of the majority, that creates rights, and especially the right of property." [331(112)] The seeds of collectivity are already present:

By becoming a citizen a man has even lost his own individual existence. For Rousseau informs us that 'the mission of the legislator is to transform each individual, who by himself is a solitary unit, into a part of a larger whole from which this individual in a certain measure receives his life and being.' . . . Christianity in asserting the independence of religious from civil authority had liberated the human conscience form the yoke of the State. Rousseau would replace that yoke.

[332(112)] Like a dog, it would seem, man left Christ and then returned to his own earlier pagan vomit. This is in keeping with proverbial wisdom: "As a dog returneth to his vomit, so is the fool that repeateth his folly." Sicut canis qui revertitur ad vomitum suum sic inprudens qui iterat stultitiam suam. (Proverbs 26:11).

Herbert Spencer by John McClure Hamilton (1853-1936)

The last theory addressed by Mercier before launching in the natural law way of things is the theory of the "social organism" or organicism. Though it has some Platonic roots, and was present in the teachings of the Physiocrats, and even in a form in Hegel and his disciples, this now-forgotten theory was advanced by the likes of Paul (Pavel) von Lilienfeld (1829-1903), Albert Eberhard Friedrich Schäffle (1831-1903), and the social Darwinist Herbert Spencer (1820-19

We are told by Spencer that all phenomena are governed by a law of evolution. . . . Now under this same law of evolution individuals are brought together to form social organisms. . . . For he viewed the life of society as not essentially different from the organic life of man . . . .

[333-34(113)]. Mercier cuts to the quick: this theory "is simply a restatement of the old-world materialism." Like all materialism it denies the human personality. [334(113)] Ultimately, the question revolves around whether "the individual, who is also the social unit, is not something more than a mere aggregation of cells, such as materialists would have us believe." Their denial of any further principle other than atomism or cell-aggregation, "when applied to political science," leads to "the most radical absolutism." [335(113)]

"Liberty and the traditional philosophy of man's spiritual nature stand or fall together." [335(114)] And it is to that conception of man and to the State, that Mercier directs his attention and ends his foray in the natural law in his A Manual of Modern Scholastic Philosophy. That will be the subject matter of our next, and also last, posting on Cardinal Mercier and the natural law.

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*Rationnel (adjective) is French for rational.
**The "King's Evil" (le mal du roy) or Scrofula (Tuberculous cervical lymphadenitis) is essentially tuberculosis of the neck. Popular belief held that the "royal touch" of the monarch of France or England could cure the unfortunate subject of the disease. It was viewed as a power collateral to his right of rule. Apparently, the power respected the Salic law in France, but not in England, where Queens apparently claimed it.
***Gerard Manley Hopkins, "God's Grandeur."
****Gerard Manley Hopkins, "Binsey Poplars."

Cardinal Mercier and the Natural Law, Part 18: Family Rights

THAT THE FAMILY HAS RIGHTS, natural rights at that, is forgotten in modern Western thought. The family has suffered assault from the existential, relativistic, liberal ethic, just like the individual. As the individual is said to be able to define himself without regard to his nature, so, analogously, is he able to define what he means by family. Man is answerable neither to God nor to his nature in respect to self or to family. This is the modern creed of liberalism, and it gives us such foul perversions and natural aberrations, indeed monsters, as homosexual "marriage." The intellectual dishonesty among its advocates is rank. Suggesting that homosexual "marriage" is constitutional is untenable under any reasonable theory of a written constitution, at least the U.S. Constitution. In no wise can it be said to have incorporated implicitly, much less explicitly, the right to homosexual activity, much less homosexual marriage. The suggestion is a legal enormity as much as it is a moral enormity.

The institution of marriage is a natural institution between a man and a woman formed by their mutual consent to join for life. The institution of the family derives from the institution of marriage and the procreation of children. Thus there are two societies or relationships: a conjugal "horizontal" one between spouses (which arises out of the marital covenant), and a "vertical" parental one between parents and children (arising out of consanguinity and procreation). In his discussion of right and duty, Mercier treats of the institution of marriage--its purpose, the perpetuity of the marital bond--and then family.

Mercier steps slightly outside of the typical presentation of marriage, at least at the time that he wrote his A Manual of Modern Scholastic Philosophy. In his discussion on the purpose of the institution of marriage, he designates the first end of the family as the good of the spouses. He describes the second end of the family as the procreation and education of children. In most classical treatments of marriage, the hierarchy of ends is reversed. What Mercier appears to be doing, however, is not contradicting the classical treatment, but presenting the ends in chronological order. First there is marriage and union of the spouses, and second there is procreation. The chronology in ends is thus distinguished from the hierarchical ordering of ends.

A man and a woman generally agree to unite themselves in marriage each with a view to his or her own well-being and the well-being of his or her partner. "This is the reason why they give themselves to one another, each being the complement, as it were, of the other by sharing in common the physical, intellectual, and moral resources of their individual natures." [316(99)] The couple seek happiness in their wedlock. There is thus conveniently joined in marriage the happiness sought by the couple with the means to assure the perpetuation of the human race and the allaying of the "importunities of passion."*

Couple and Child by Marc Chagall (1887-1985)

The second end of marriage and the family is the procreation and education of children. [317(100)] Human development is a lengthy process, and the marital relationship is accordingly naturally designed to be long-lasting, indeed permanent. Parents have the duty to form and educate their children.

To parents above all others falls the duty of being the protectors and educators of their child. This is not difficult to understand. Together they have been instrumental in bringing into being a human person like themselves, possessing the same imprescriptible right both to life and perfection and yet incapable of providing for himself. Tho whom should such a one turn to obtain the assistance to which he has a right unless to those who are the authors of his being? To their instrumentality his life is due; by bringing him into being they have taken upon themselves the duty of providing the means for his preservation and his full development. Such is what right order would require. . . . This is the dictate of logic, and is not the natural law the law of reason?

[317(100)] The natural disposition or natural inclination that parents have to their children is evidentiary of what reason would require of parents.

[In slightly different presentation, this is the Augustinian/Thomistic trilogy of the ends of marriage of marriage: offspring (procreatio), mutual help and aid (mutuum adiutorium or auxilium), and the legitimate expression for sexual desire (honestum remedium concupiscentiae). These are closely tied to the three goods (bona) of marriage: the good of children (bonum prolis), the good of fidelity (bonum fidei), and the good of a "natural" sacrament (bonum sacramenti).]

Mercier elaborates on what is meant by education of children. The education is holistic, and includes physical, intellectual and aesthetic, moral, and religious education. Physical education looks to the health of the body, and so includes providing a healthy physical environment, with opportunity of exercise. The physical development is important to the intellectual and moral life. Intellectual education helps develop those specific human faculties that have as their object the true and the beautiful. This requires the development of the senses, the memory, and intelligence. "The primary purpose of [intellectual] education is not to stock the mind with erudition, but to make it capable of thought." [319(101)] Although parents are preeminently the educators of their children, "public authority has here the right to interfere in the last resort in order to safeguard the right of the child [to education] against any remissness or selfishness on the part of the parent." [319(101)] The religious and moral faculties of the child must not be neglected.

As morality is meaningless if divorced from the idea of the Absolute--the proper object of religion--the moral upbringing of anyone must have religious education as its foundation. By the first he will be shown the law which must govern his conduct, he will be taught how to conform to it, and for this end his will-power will be strengthened against the allurements of the senses; by the second he will be shown the august origin of this law and the sovereign sanctions on which it rests. Parents owe to their children this moral and religious education . . . .

[320(101)] The duty that the parents have to their children suggests that the children have correlative duties, and they do:

The duty of parents towards their children implies as its counterpart the rights to obedience, respect and affection from the latter towards them.

[321(102)]

Viewed strictly from a natural law standpoint, and not from any religiously doctrinal point of view, marriage is, by nature, "an indissoluble contract." The reason for its indissolubility is that it s founded upon love, not sensual love, but "a love that is rational, which alone is worthy of the dignity of man." [321(103)] Thus, superficial, fleeting, passing qualities are not the substance of marriage. Marriage "has the grasp of a substance that is enduring." "Its very nature is that it should last." [321(103)]

The perpetuity of the marriage bond is made more manifest by the link it has to the procreation and education of children and their correlative duty to honor their parents. The education of children is a lengthy, laborious, and enduring one, which calls for a stable, long-lasting relationship between the parents. More, once the children become emancipated, they are still bound to their parents by the claims of gratitude which "may put upon them imperious obligations binding in strict justice." [321(103)] So the parental union would seem to endure by nature beyond the emancipation of the children. "The dissolution of the latter [marriage] would shake the very foundations of the economy of the former [obligations of gratitude, perhaps even care, that children should have to their parents]." [322(103)]

Mercier then handles the problem of divorce. He acknowledges that legislators have made exception to the perpetuity of the marital covenant and have permitted divorce. In discussing the issue of divorce, Mercier divides the issue into three separate parts: divorce by mutual consent, divorce for incompatibility of temper, and divorce for reasons of adultery, cruelty, or ill-treatment.

It is evident that divorce by mutual consent, or for mere incompatibility of temperament, notwithstanding the legal [civil] formalities that accompany it, is nothing short of a direct negation of the whole principle of the perpetuity of the marriage tie.

[322(103)] The entire edifice upon which such notion of divorce rests--the rescindability of the marital covenant--makes marriage as an institution less enduring.

Divorce on the account of adultery or some grave crime (violence against a spouse, for example) is a harder case. "For certainly the innocent party, condemned to live a solitary life under the hard law of continence, has a claim on our sympathy." But marriage is more than a contract for the convenience of two individuals; it also has a social role. And divorce, which is always an evil, may be viewed by some as the lesser of two evils. The Catholic Church has thought otherwise:

The Catholic Church has . . . absolutely prohibited divorce in the name of the higher interests of morality and social order. And the experience of centuries has clearly justified her action. We are well aware that when divorce is once sanctioned by law it slowly by surely becomes a practice in all classes of society. It works as a germ bringing social dissolution and death. In vain does legislation [or marital counseling, for that matter] attempt to restrain the growth of this evil. The time comes when the restrictions of thought to be capable of opposing further developments are swept away by the impulse of passion. . . . It was for this reason that the Founder of Christianity laid down the principle, 'what God hath joined together let no man put asunder.'

[323(104)]

Holy Family by Bartolomé Esteban Murillo (1617-82)

Let any modern argue that no-fault divorce has raised the health and welfare of family life. Let any modern argue that the current marital regime has led to more stable, more fulfilling family life. It is an impossible burden. The very opposite seems manifestly the case. In the West, the family is in shambles. And divorce and contraception are, above all, the principal culprits. They are fundamentally opposed to marriage, deny its very nature. Is it any wonder that, accustomed to such marital evils, we have lost the sense of what marriage is, and now hear arguments seriously entertained that marriage is even possible between two members of the same sex? It is but a short step, however, from marriage made artificially unfruitful to marriage by its nature unfruitful. But marriage made unfruitful, either by nature or by artifice, is no longer marriage. It is a travesty of marriage.

[S]igns are not lacking of a disturbing degradation of some fundamental values [relating to marriage and the family]: a mistaken theoretical and practical concept of the independence of the spouses in relation to each other; serious misconceptions regarding the relationship of authority between parents and children; the concrete difficulties that the family itself experiences in the transmission of values; the growing number of divorces; the scourge of abortion; the ever more frequent recourse to sterilization; the appearance of a truly contraceptive mentality.

Familiaris consortio, No. 6.

Before Mercier takes leave of his discussion of marriage and family, he briefly discusses the relationship between marriage and family and the State. "[T]he institution of the family is not the result of legislation, nor are the rights and duties of its members created by it." [324(105)] It is the height of hubris, indeed, it is absolutely tyrannous, for the State to suggest that it has the power of defining marriage through positive law. While the State should have a supportive role in its citizens' marriages, and may address certain aspects of marriage life, such as formalities of marriage, and financial and other social or public aspects of it, marriage and family life remain fundamentally outside and independent of the State. Marriage is a natural institution established by God, and is governed by natural law and natural right, which are absolutely preeminent over the State, and to which the State must be subordinate. For the State to arrogate to itself the right to re-define marriage, whether under the mantle of "equal rights" or any other pennant or standard, is an arrogation of power it does not have. In a sense, it is a claim to divinity, of power over nature, over man, and over God. The advocates of homosexual marriage are doing nothing other than feeding the ravenous appetite of a tyrannous state that sees no natural limitations on its legislative powers. If it can define marriage, it can define man, and that means he can define who is man, and who is not (as indeed it has done in legislating or by judicial opinion holding that children in the womb are not "persons" subject to legal protection).


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*Cardinal Mercier emphasizes that the fact that marriage "allay[s] in some measure the importunities of passion," that is, acts as a honestum remedium concupiscentiae, a legitimate remedy for sexual concupiscence, "must not have a preponderating influence." "Sensual gratification," Mercier reminds us, "must always be subordinated to a higher motive, for if this is sought as an exclusive end, the worst excesses may result. The union of marriage is not that of merely material organisms but of persons with spiritual natures. To be of one flesh is but a means to a closer union of soul. This the dignity of human personality requires." [316-17(99)]

Cardinal Mercier and the Natural Law, Part 17, Respect of Property

PROPERTY IS AN IMPORTANT but not absolute right in Mercier's view. "Property, as synonymous with ownership, is the right to use and dispose of an animal or thing for a legitimate end without the interference of any other person." [279(82)] Mercier distinguishes between use and disposal, and is critical, from the perspective of natural law, of a notion of a right of absolute disposal of property. Essentially (at least in Mercier's time, it is certainly less true now), the positive law does not enforce, though it does not necessarily deny, the moral restrictions that may govern an individual's particular disposal of property. In some cases, restricting the disposition of property so as to conform to moral requirements would give rise to worse abuses. Yet here, as in many cases, "certain acts which the positive law refuses to punish may still be infringements of the moral law." [280(83)]

Two factors can limit the right to private property from a moral point of view. The first is the nature of the goods that are committed to our particular dominion. The second arises from our own nature as a rational and social being.

Private property is to be understood as existing under the design of divine Providence. Destruction of property out of mere caprice, with no purpose in view of oneself or others, disregards such aspect of property ownership. The abuse or poor treatment of animals, the infliction of unnecessary suffering, falls under that same limitation. Similarly, to use property to gratify illicit desires is an immoral use of property.

Because man is by nature a rational and social being, property ought not to be used in a way that contradicts those aspects of his nature. Thus, property use or disposition cannot be purely based on selfish motives. But this prohibition does mean that the only proper use of property is social.

Since the individual has a his personal life to consider, he can aim at furthering his own development and his own happiness by the disposal of his goods; only he must never forget that he is a social being as well. . . . If he possesses a superfluity, he will share with those who are in want of the bare necessaries of life.

[280-81(84)] This principle may also be used with respect to celebrity. One who enjoys the fruits of celebrity is to use his celebrity not to further his selfish whims, but is to recall that he must use that celebrity to exercise positive moral influence on others. It is not to be used as a platform for scandal or bad example.

Mercier explains the source or basis of the right to private property. Various theories have been advanced to explain its basis. Some base the right on mere convention (social contract) or positive law (e.g., Hobbes, Montesquieu). Others base it by extending it or tying it to the right of each man to the fruits of his labor (e.g., Locke, Adam Smith). Mercier rejects these theories as insufficient or self-defeating. With respect to the social contract theory of ownership, Mercier observes:

Men could never have set out to divide goods [by compact], if they had not previously the right to dispose of them, that is to say, the right of ownership . . . . Ownership must therefore logically precede the social compact.

[281(85)] The Lockean justification for private property is probably the most widely accepted contemporaneously. Mercier rejects its sufficiency as an explanatory basis for right to property:

[L]abour is not the foundation of ownership; it is an exercise of it and presupposes the general right to dispose of the goods of the earth. I cannot claim to transform anything by my labour if I do not first of all possess the right of making it serve my purpose, that is, the right of disposing it.

[282(86)] How can we claim the crops we, through our labor, have grown, if we do not first have the property right to land and the the fruit of our labor? Basing private ownership on labor begs the question.

Mercier finds the right to property to be based upon human nature.

The earth and its wealth were made for the use of man. . . . Man has the right to use and to dispose of things and of animals, because, as we have already said, he is a person. As such he has the [natural] right both to provide for his own preservation and to make use of his natural powers. Hence he may establish his dominion over things, since this is a necessary condition both for his existence and for his development. And it is clear that this dominion must not only look to the satisfaction of his present needs . . . . As a rational and free being capable of foreseeing the future and of restraining his appetites . . . he acts in conformity with his nature when he regulates his conduct with a view to his future needs. As the head of a family he is bound to some extent to provide for the future of those whom Providence has entrusted to his care.

[283(87)] However, this natural right to property may be exercised either privately or communally, for the justification of property may be viewed from either individual or communal perspective. Mercier believes that "what is due to man by virtue of his humanity does not belong simply to the race as a whole but to each individual member of it." As a result individual ownership is a legitimate expression of the natural right to property. Against this view is the communist and the collectivist (socialist) notion of property, which would deny the individual, at least to great extent, the individual right to property. Mercier engages the standard arguments brought by communist and collectivist theories of property, and disposes of them. He also addresses the typical objections to private property and capitalism, and offers responses or counterarguments against them. These will not be reviewed here. [284(89)-306(93)]

In the last three sections of his treatment of the right to property, Mercier discusses the various titles to property (by occupancy, by prescription) [307(94)-311(95)], the (natural) right to make a will [311-14(96)], and the (natural) right to inheritance [314-15(97)].

Mercier next addresses the rights of members of the family, a matter we will reserve for our next blog posting.

Cardinal Mercier and the Natural Law, Part 16: Individual Right to Opinion and Expression

FREEDOM OF OPINION AND OF EXPRESSION OF THAT OPINION is Mercier's next topic under the category of individual right. Mercier distinguishes between the holding of an opinion, and the free choice and liberty relating to that, and the external expression of that opinion, through speech, writing, or action. Moderns appear to hold to a law of anarchy in the area of opinion (Mercier calls his age an "age of intellectual anarchy"), holding as sacrosanct the right to anyone to hold whatever opinion he wants on any matter.

In a manner of speaking, of course, there is absolute ability to think whatever we "Man does not escape the law which binds every thinking being of searching for the truth."
--Cardinal Mercier wish free of physical restraint. Since thought takes place in the inner consciousness of man, it is hidden from others, and so generally free of external compulsion. But it would be error to believe that one is free to think whatever thoughts he wishes with impunity, as if the faculty of thought is not subject to the moral order.

Man does not escape the law which binds every thinking being of searching for the truth. His fancies, his interests, his passions have no claim where there is a question of the higher rights of truth. . . . Freedom of opinion, then does not mean the right to be indifferent to religious and moral questions. As in other fields, so even more emphatically here, eagerness for the truth must be the ruling principle in the whole of man's mental progress.

[275-76(80)] Thus the inner freedom of thought is given us, not for whim, but to allow the untrammeled search for truth. Freedom of thought is ordered to acquisition or pursuit of truth.

Given the intellectual anarchy of the modern age, we must exercise prudence and tolerance informed by charity in the treatment of others, without thereby lapsing into indifferentism, or losing sight of our obligation, in charity, to exercise the spiritual works of mercy of instructing the ignorant, counseling the doubtful, and admonishing the sinner.

We say that it is undoubtedly the duty of every intelligent being to assent to the truth according to his opportunities of knowing it. But it is quite possible that under the prejudices of education or by other influences a man may in good faith adopt what is false. The assent of the mind to doctrine is not always determined by mere evidence. It is generally the highly complex resultant of subjective conditions that entirely escape the observation of others. The tribunal of a man's conscience is a sanctuary into which no one may enter. To form an estimate of the sincerity of another's opinion is matter of the utmost delicacy. God alone searches the reins and the heart. We have no right, therefore, to condemn anyone as soon as he thinks differently from ourselves. Still less may be we use coercive measures. To resort to persecution would be not only odious but absurd. Not by force but by persuasion are ideas propagated. Christ did not send His disciples to conquer the world by the sword, as did Mohammed; His only injunction to them was to go and teach.

[276-77(80)] Thus, Mercier recommends that we presume good faith on the part of one in error, and reject any temptation at using constraints to force a man to repudiate what he believes to be true, or to accept that which he believes to be false. Nevertheless, such respect for another's erroneous opinion does not in any way translate to accepting that error and truth have the same metaphysical value, or that truth and error are to be regarded as in the eye of the beholder, and therefore a matter of indifference. The duty to search for truth is absolutely and unequivocally moral. It is between the individual conscience and God. It is not a matter of competency for the secular or public authority.

The liberty given to thought or opinion is therefore to be free of interference by the law of civil authorities. However, the freedom of expression of thought or opinion, from a moral perspective, may be considered to be less broad. In his constitutional jurisprudence, Supreme Court Justice Hugo Black was an absolutist in the right of free speech. Whether the U.S. Constitution guarantees an absolute right to free speech or not, in Mercier's mind there are both moral as well as legitimate legal grounds for controlling speech, "but only in the measure that this is necessary for the public good." [277(80)] The State is limited in its authority to restrain speech.

First of all, unlike the Church, the State is not the repository of truth. "As it is not the depositary of absolute truth, it has not the sovereign power of silencing discussion. The supreme direction of man's mind does not belong to the State." [277(80)] Because the right of teaching the young is another form of expressing one's ideas, it follows that the State "cannot claim a monopoly of teaching." [278(80)]

The State has no right to mould all its citizens in one type, or to oblige them all to think alike, on the pretext of bringing about perfect unity in the body politic. . . . The right of teaching, like that of thinking, is derive from human personality and has no direct connexion to the mission of the State.

[278(80)]

Secondly, true and even doubtful opinion ought to be allowed free expression. Attempting to influence expression invariably leads to an effort to control thought. Moreover, allowing the free expression of even erroneous opinions allows such views to be criticized, checked, and corrected by others. "Private enterprise is a great factor in progress, alike in the intellectual as in the economic sphere." [278(80)]

Nevertheless, the State does have some authority to limit or restrict the right of diffusing one's opinions.

In the public Authority, which is the interpreter of the natural law and the guardian of social order, must be recognized the right to repress the diffusion of opinions which are clearly inimical to the general peace. Intervention in the matters of opinions has been allowed as a final resource by even the most liberal legislation. Examples of abuse are not wanting; but this only means that liberty requires serious safeguards. However, between a [secular] dogmatism or a sectarianism that is intolerant and persecuting, and a liberalism that authorizes the diffusion of the most subversive ideas, there is surely a just mean.

[278(80)]

The last liberty right that Mercier addresses is liberty of conscience. "By liberty of conscience we mean the right every man possesses of acting in accordance with the dictates of his own conscience." [278(81)] The right to freedom of conscience may be infringed in three ways:

• By inciting or persuading another to do wrong by example, by counsel, or by threat;
• By forcing another to do something which he believes is forbidden;
• By preventing another from doing what he believes is required to be done.

The right to act in accordance with one's conscience is an absolute right if the voice of conscience is "clear and right." However, a "false" conscience may be interfered with to the limited extent that public authority may "oppose any of its manifestations which would damage lawful rights and interests or would be directly subversive of public order." [278-79(81)] Hence, the public authorities could prevent an anti-abortionist zealot from acting in accordance with his conscience which (falsely) directs him that he has a duty to murder abortionists to prevent the slaughter of innocents. Such activity, however sincerely held as required by conscience, is manifestly subversive of public order. Similarly, in spite of liberty of conscience, the State could obviously interfere to proscribe human sacrifices or other immoral practices even if sincerely held by the religious believers of some errant sect. Manifestly, "liberty of conscience may be restricted in the case of a false conscience." [279(81)] (emphasis added). However, this negative and limited power upon public authority to prevent someone from acting in accord with a false conscience should be distinguished from public authority compelling someone to act against his conscience as, for example, requiring him to externally adhere to a doctrine to which internally does not assent or to abjure a belief which his conscience bids him to hold as true.*

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*Mercier has a footnote that merits mention. "When it is said that St. Thomas Aquinas maintains the repression of heresy to be lawful, it must be added that he looked upon the heretic as a rebel not only against God but also against society, based as it was at that time entirely on Christianity. To him the heretic was one who committed a sin which had anti-social effects. In this fact alone lies his reason for justifying civil measures of repression; for he expressly recognizes that some of our obligations are matters for the individual conscience alone, notably such as duties to God. Moreover, he proscribes every measure of constraint of those who are strangers to the truth faith, on the ground that no one is bound to give an enforced assent to dogma." [279 n. 38] In this regard, it may also be mentioned that the Inquisition had no jurisdiction over Jew or Muslim, but its jurisdiction was only over the baptized, that is to say, the Catholic Christian.

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 MercierThis 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.

[275(79)]

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


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*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.

Cardinal Mercier and the Natural Law, Part 14: Natural Law, Right, and Duty

FROM GENERAL ETHICS, Cardinal Mercier goes into special ethics. His introduction to the topic of special ethics begins with clarification between the moral law, the natural law, positive law, rights, their origins and their kinds. Natural law or natural right, in its wide or most broad sense, "comprises all the rules of conduct which are logically deduced from the [natural] moral law, and which form the basis of our rights and duties both with regard to our neighbour and society in general." In this wide sense it is equivalent to "social morality." Used in this broader sense, we are dealing not with the foundational natural law, but with natural law after it has been determined, fitted, as it were, to the contingencies of contemporaneous society. Thus, although the natural law in the narrow sense is immutable and universally known, in this wide sense, the natural law or right may not be immutable or universally known. (In fact, it may not even exist until a contingency. Before in vitro fertilization, there was no need for natural law guidance in this area. Before the advent of paper money, "fiat" money, there was no need for natural morality to be applied to this human creation, etc.) The term natural law may also be used in a more restrictive sense than "social morality." It may be used that part of "social morality which treats of our duties arising from justice." [264(70)]. This subset of "social morality," also referred to as natural law, "designates all the rules of conduct which are logically derived from the moral law and whose execution, if need be, may be enforced by coercive measures." [263(70)] Thus we have natural law in the narrow sense, and natural law broadly defined as equivalent to "social morality," and natural law defined as a subset of "social morality," being those aspects of social morality which are subject to enforcement because of their close relationship to justice.

Positive law is the law that is posited,* or promulgated, by legitimate authority over a civil society. By its nature, it is flexible and changing by circumstance, and its aim, and indeed its justification, is that it orders the body politic with the end of the common good.

Our obedience is due to positive laws because such obedience is a condition of social life in its full development. Hence nature, or what comes to the same, natural law, enjoins a respect for the commands of a human legislator. The will of a legislator, since it is of a kind no different from our own, cannot of itself constitute the source of a true obligation for us; but the natural law, being dictated by God, does possess sovereign claims to our obedience.

[264(72)] Thus human positive law is, as it were, an appendage to the natural law. It requires the natural law for its authority. "There is a higher law than human laws, one 'written on the tablets of the heart', in the name of which the individual always has the right to protest against the tyranny of rulers."
--Cardinal Mercier It has no authority outside of the natural law, since it is based upon the will of man, and one man's will has, without authority behind it, no particular right to obedience. Mere aggregation of human wills in a chamber at a capitol does not make those wills any more grand so as to justify obedience without authority. Since all authority comes from God (Rom. 13:1), it follows that the positive law must accord with the law of God, must be within the scope of God's agency, or it ceases to have any binding nature. A human law that strays from its justification, that issues outside of the scope of its agency, collapses once again mere human will. So even though it comes dressed as a law, it is not law at all.

That is precisely where Mercier finds a corollary that is anathema to the positivists, secularists, and tyrants of any time and place:

No one must obey a positive law that clearly contradicts the fundamental principles of the moral law. In such circumstances the inalienable rights of the individual conscience must be resolutely vindicated against the claims of any form absolutism.

[264(73)] The source of this absolutism is irrelevant: it can be the will of one man, it can be the will of all but the conscientious one, it can be the will of any number in between.

It is at once apparent that this principle is subject to abuse. It is not a recipe for revolution or easy excuse for disobedience to properly constituted authority. But the fact that it is subject to abuse does not change one iota the fundamental truth of the principle. The danger of its abuse, however, "only furnishes a reason for not making a light use of its application and for carefully gauging its extent." The danger of its abuse does not give reason for "repudiating it." [264(73)] The fact that a law may be prejudicial to our interests is not justification for disobedience. The fact that a law may be against our best opinion is no justification for disobedience. Benefit of the doubt should be given to authority. Even if a law is clearly unjust, we may have to tolerate it, as affirmative disobedience to an unjust law may foreseeably result in more injustice than tolerance of an unjust law. But with all those caveats it remains unalterably true:

There is a higher law than human laws, one 'written on the tablets of the heart', in the name of which the individual always has the right to protest against the tyranny of rulers. In vindication of this right the martyrs shed their blood.

[265(73)]

Mercier's discussion of the relationship between natural law and positive law then gives way to the discussion of the origin of rights, both natural rights and positive rights. As positive law finds its fons et origo in the natural law, the question can be translated to whether positive rights find their fontes et origines in natural rights.

Mercier rejects at once any notion of rights being derived from a priori principles of individual reason. Thus, any Kantian basis for individual rights (which has essentially been adopted by political liberalism such as John Rawls's version) is spurned. And for good reason. Any Kantian basis for individual rights either ends in might over right or in right being nothing but convention. Mercier explains. Kantian notion of right stems from the categorical imperative, which a priori stems from the constitution of the mind itself. The Kantian formula begins with absolute autonomy of will, and limits it only by the categorical imperative. That imperative requires us to act externally in such a manner with respect to the free exercise of our will so that we may co-exist with the freedom of others and that it may be applied as universal law. The formula essentially requires that "the liberty of each must be reconciled with the liberty of all." [266(74)] The problem with the Kantian formula arises in its overemphasis of autonomy:

If the autonomy of the human person is in a true sense absolute [as proposed by the Kantian formula], I shall respect this autonomy in myself only by exercising my liberty as fully as possible; my right then will know no limit but my might. And everyone else may say the same of himself. Hence an inevitable conflict will arise between the activity of individuals, each of whom will try to extend his rights indefinitely.

[265(74)] In this incessant competitive scramble and clamor for individual rights, which is a necessary result of Kantian autonomy, two things must happen. Either the strongest will win over the weakest, and we fall into that most horrible of prospects that might makes right. Or else some sort of Hobbesian social compact may be made among all competitors so that there may be some sort of mutual pact of coexistence. The basis of right, as a consequence, will either be force or social contract. In one of these two manners will the competition of autonomous wills end. And there will be no notion of natural right. At its root, Mercier further notes, Kantian autonomy, and its emphasis on individualism, is anti-social since it advances the notion that autonomy is the superior good, and there is a mistaken perception that there is a loss of dignity or freedom in subordinating one's autonomy to the life of the community. Mercier therefore rejects any Kantian basis of individual right based upon autonomy and the application of the categorical imperative.

Equally rejected by Mercier is the notion that individual rights derive from the State. Here, the vaguely pantheistic musings of Hegel and Schelling and their followers tie in the Absolute with the State.

The Absolute is one with the substance of the Universe, and this substance is mind. The State is only a mode or aspect of the absolute or divine reason. The will of the State, not as arbitrary but as regulated according to the immutable principles of reason, creates rights.

[266(74)] Not only are these pantheistic theories subject to the criticisms against pantheism generally, but it is more patently offensive and in fact endemically against any sense of natural right. The State is the provider of right, and civil law becomes raised to the stature of absolute sovereignty.

Mercier also rejects any suggestion that human rights derive from a hedonistic or utilitarian principle. The natural right to these essentially Hobbesian thinkers derives from the natural "free for all" that exists in a State of Nature. These rights are entirely traded in for the peace and security of the social compact. Following this trade, the only rights that exist are those that are given by the State, which parcels them out on some sort of utilitarian formula (greatest good for greatest number). So it is that these ultimately lapse into notions that laws and rights derive from social compact or from the will of the legislator.

Similarly, Mercier mentions other competitors to Kant, Hegel, Hobbes, Mill: Rousseau (rights are the result of free will), Herbert Spencer (rights are the product of biological factors or the social organism), only to reject them. [267-68(74)]

The traditional basis for natural right is distinct from those bases advanced by the post-Enlightenment thinkers:

Rights are founded immediately on the moral law inasmuch as this is the expression of the intrinsic exigencies of our nature, and mediately on the Divine Will.

[268(74)] Quite obviously, this basis for human rights is different from the other theories. While it shares with Kantian theories the notion that the basis for human rights is the moral law, it bases itself on a traditional, classical natural-law foundation, both ontological and teleological. It thus does not suffer from the subjectivity of Kantian moral theory, but is ruggedly objective.

[T]his [moral] law, we maintain, [unlike Kant's moral law,] does not resolve itself into a priori judgments arising from the constitution of the mind and without any objective validity. The principles of our reason are the expression of essential relations which exist between things; our reason is not determined in the formation of its judgments by any blind necessity (e.g., by a priori forms) but by the force of objective evidence [i.e., reality, the way things are]. Hence when it prescribes certain rules of conduct in our dealings with other men, it does but formulate an order of relations which are derived from our very nature. Man is by nature a social being. The moral law therefore teaches him to live in accordance with that social nature. From this there result a number of practical judgments or imperatives which constitute the Natural Law.

[268(74)]

The purpose of the positive law, then, is to enflesh, in a human way, these fundamental human rights that derive from the natural law.

The function of Positive law is to interpret what is enjoined by the Natural Law, to develop its consequences, to enforce its execution, and to check its violation.

[268(74)] (emphasis added).

To maintain, as the positivist juridical theorists such as John Austin and his ilk maintain, that law and morality are, like East and West, separate and never should "Rights are founded immediately on the moral law ..."
--Cardinal Mercierthe twain meet, is folly. The moral law is, in fact, the one and only sure basis and foundation, the fons et origo of positive law and positive right. Ultimately, we find human right informed by our nature, "[b]ut as our nature, and consequently the moral law, have their origin from God, it must be the Divine Will, acting under the guidance of the Divine Reason, which is the metaphysical source of the natural law," and, through the natural law, the positive law.

Mercier then launches into a discussion of rights. These he divides into three general groupings: individual right, family right, and public right.

What, in Mercier's view, individual right consists of in light of the natural law is the topic of our next posting.

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*posit comes from the Latin positus, past participle of the verb ponere "to put" or "to place." Thus it means having been put or placed forth. It is thus law that is put or placed by the will of the legislator which could be human (in which case it is human positive law) or God (in which case it is divine positive law).