Government and the Limits of Human Law
By Dr. Jeff Mirus (bio - articles ) | October 04, 2012 12:23 PM
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Earlier this week, a federal judge in Missouri ruled against Frank O’Brien’s claim that the HHS
mandate violates his religious liberty by forcing him to act against the moral principles he must hold as
a Catholic. Judge Carole Jackson stated instead that “this court rejects the proposition that requiring
indirect financial support of a practice, from which the plantiff himself abstains according to his
religious principles, constitutes a substantial burden on plaintiff’s religious exercise.”
There are a number of issues raised by this decision that could be addressed profitably. It is also
necessary to understand that this case is one of many cases being filed in a variety of federal
jurisdictions in the hope that conflicting decisions by various judges will force the Supreme Court to
settle the issue; therefore, this case cannot be regarded as definitive.
However, what I wish to examine here is the dilemma posed by the apparent need for government to
determine what does and what does not constitute a religion, or a religious teaching, or the exercise of a
religious responsibility. For it seems that government must determine such things when it weighs its
own aims against its responsibility to protect religious liberty. For Americans, this need stems from the
“free exercise” of religion guaranteed by the first amendment to the Constitution of the United States.
This is part of the original Bill of Rights, without which the Constitution itself would never have been
adopted. There are analogues in other Western nations, all of which have a theoretical commitment to
religious liberty.
Dilemma of State, Dilemma of Church
It is not hard to see the dilemma faced by the modern State when it comes to the free exercise of
religion. What makes it so very easy to see is the remarkably diverse and splintered character of
religious belief in the contemporary world. Things were very different, for example, in the Medieval
period, when Western society enjoyed the stability of one overwhelmingly dominant religion under a
single ecclesiastical authority. In that culture, there was little confusion about what “religion” meant in
terms of the claims that secular governments had to respect. But in our own culture, beginning with the
splintering of Christianity and the influx of religious ideas from other regions of the world, and now
under the supreme influence of an astonishingly proud and vain individualism, religion has largely
become whatever anybody wants to claim that it is. Surely the government cannot be expected to
protect every last thing that one group or another may claim it is bound by its “religion” to do.
Should the government be required, for example, to make broad provision for the dietary rules of
Judaism or the avoidance of motorized equipment by the Amish? Must it honor Quaker pacifism? Need
it condone the use of various drugs in the religious ceremonies of certain cults? What about the
polygamy of Mormons? The attitudes toward property of Transcendentalists? The sexual mores of the
Playboy philosophy? Where, if anywhere, may a reasonable line be drawn? How does the social order
escape the results of a theory of religious liberty which may include, in our crazy times, anything and
everything?
But of course as soon as these questions are raised, one also sees the dilemma faced by those who take
their religion seriously, by the various churches, and by the Church herself. For the State is manifestly
incompetent to judge the truth or falsity of religious belief, to determine whether one set of beliefs
constitutes an authentic religion while another does not, to determine which activities may be construed
as significantly religious, or to decide whether any particular person is religious or not.
One can hardly restrict the designation “religious” to the official representatives of a religious body,
which in any case would not solve the problem, or define freedom of religion as mere freedom to
worship, at least without doing violence to the very nature of religion itself. The claim of nearly every
religion is that it requires a particular way of life, and all major religious believe this way of life
impenetrates everything a person does. And while pagan religions may have been largely devoid of
moral content, the major religions of the world, and especially those influenced by the Judeo-Christian
tradition, see God as supremely moral. Thus religion is something which guides not only particular
rituals but every aspect of moral behavior. How is human government to determine what is and is not
religious? How is it to decide which behaviors call for religious protection?
The Deficiencies and Perils of Legal Positivism
By itself, human law cannot effectively address these dilemmas. In fact, modern legal systems—
including the American legal and judicial system—cripple themselves on religious issues precisely by
their assumption that all they have to work with is human law—that is, whatever constitution-writers
choose to write, whatever legislators choose to enact, and whatever judges choose to decide. This selfimposed limitation goes by the name of legal positivism, and it reflects the mistaken modern belief—
completely foreign to the larger Western tradition of law—that the rule of law consists exclusively of
whatever human laws have been enacted, no more and no less. There is not, on this reading of reality,
any external standard of justice by which human law itself may be judged.
Almost all Western law schools are now rooted in legal positivism, and yet it is already obvious from
the first section of this essay that legal positivism is powerless to address at least one of the great
questions of civil polity, namely the freedom and scope to be given to the religious exercise of citizens.
And, in fact, a moment’s reflection reveals that legal positivism is powerless to address adequately any
of the foundational issues of justice and liberty upon which thriving social orders necessarily depend.
For when we succumb to legal positivism, we lose any standard of justice and any basis for liberty
which extends beyond the will of those who have the power to enact and enforce the law. Legal
positivism is inherently despotic, which means it cannot fail to become tyrannical. For a time, through
accidents of tradition or religious belief or rational insight, those in power may make sound laws and
sound judgments, but in a system of legal positivism, there is no standard by which this soundness may
be judged. Therefore, as various “coincidental” principles are abandoned in favor of error or desire or
self-interest, the law must deteriorate.
Again, under legal positivism no larger principle is admitted by which the law can be judged. In a
jurisprudential parody of Alexander Pope, whatever is is right. We can readily grant that the powerful
will often have a disproportionate influence on the rules in every society, but under a system of legal
positivism, the powerful are always and inevitably justified in making the rules, for the rules alone
represent justice. Thus the law is judge, jury and executioner, and the law is nothing more than what
those currently in power have made it to be here and now.
The Only Solution is the Natural Law
The fundamental problem in all this may be fairly represented by the following two statements: On the
one hand, the law must be more than the mere will of the powerful; on the other hand, the law must not
be determined by the conflicting claims of various religions, which (whatever the merits of these
claims) human government has no competence to assess. The only solution to this problem is the one
developed in the Western legal tradition from ancient Greece until quite recently, namely the
recognition of the moral sovereignty of a law that is built into nature and accessible to all. I am
referring to that natural perception of justice which enlightens our consciences and demands our
obedience even in the absence of religious belief, education, and the positive law itself—a higher and
deeper law, therefore, against which the positive law may be judged. This law that is written in the
heart of every man and woman is called the natural law.
This innate human perception of natural justice was taken for granted by the founders and framers of
every legal system in the West. Indeed, until recently, it was an axiom of Western law that any human
enactment contrary to the natural law was by that fact null and void. While the reasons for the decline
of this understanding are legion, it is the pernicious theory of legal positivism which has swept the
natural law out of our legislative, judicial and executive systems, leaving us only with the will to
power.
This does not, of course, mean that the mere recognition of the existence of the natural law will end all
disputes. For while all persons instinctively perceive the natural law, and indeed argue about good and
evil almost exclusively in light of it, one part of the natural law is often erroneously used to argue
against another, and the weaknesses of individuals and even whole cultures not infrequently cause
certain aspects of the natural law—different aspects in each time and place—to be deeply obscured
even as other aspects are more clearly perceived. Nonetheless, the very recognition of the natural law
introduces an independent and rational standard of justice according to which all human enactments
can be evaluated, even if they will not always be perfectly evaluated.
Though the natural law is a palpable reality recognizable by all, it is beyond the scope of this essay to
lay out the many arguments which confirm this fundamental reality, this inherently human conception
of justice which forms the moral core of life itself. Fortunately, I have pointed out these arguments
elsewhere (see Natural Law). Suffice it to say here that in addition to providing a conceptual
framework which overcomes the tyrannical deficiencies of legal positivism, the natural law also holds
the solution to the dilemma I have outlined regarding the free exercise of religion within the confines
of the common good, which it is the burden and the joy of human government to serve.
Confirmed by Catholic Teaching
This is why you will find that Catholic teachings on religious liberty, and on the duties of the State
toward both religion in general and the true religion in particular, are always hedged about with
restrictions which insist that these governmental responsibilities must be exercised within due limits.
For her part, the Magisterium of the Church has never called upon the State to replicate the whole
Catholic system in law. Nor has she asked the State to guarantee unrestricted liberty for the exercise of
every religious belief. The Catholic Church recognizes a limiting factor in the duties of government
with respect to religion.
The teaching on religious liberty at the Second Vatican Council is a case in point. As the most recent
and most comprehensive statement on the subject, it may be taken here to represent fairly the Church’s
whole doctrine of “free exercise”:
This Vatican Council declares that the human person has a right to religious freedom. This freedom
means that all men are to be immune from coercion on the part of individuals or of social groups and of
any human power, in such wise that no one is to be forced to act in a manner contrary to his own
beliefs, whether privately or publicly, whether alone or in association with others, within due limits.
The council further declares that the right to religious freedom has its foundation in the very dignity of
the human person as this dignity is known through the revealed word of God and by reason itself. This
right of the human person to religious freedom is to be recognized in the constitutional law whereby
society is governed and thus it is to become a civil right. (Declaration on Religious Liberty (Dignitatis
Humanae), #2)
Here we see two important points of the Church’s teaching: First, the protection of religious liberty by
all human powers (including government) is to be provided “within due limits”; and second,
the grounds of this right of religious freedom is known not only through Revelation but “by reason
itself”.
Both of these points refer to the natural law. The “due limits” within which the State is to protect and
foster religious liberty are the limits of the natural law, with respect to both moral right and wrong and
the need for civil order (in the sense of governmental protection of public safety). Thus the modern
dilemma, in which we can so easily see (and are constantly reminded by secularists) that government
can hardly be expected to protect every idea and activity of every madcap religionist, is really not a
dilemma at all in a society which recognizes the natural law. For any religious mandate which insists
that its adherents violate the natural law is, no matter how lofty its Divine claims, subject to legitimate
restriction by the State.
Moreover, the dilemma of the churches that the government is incompetent to judge in matters of
religion is also swept away under the tutelage of the natural law. For since the same God reveals
Himself through both specific Revelation and the natural law, as being the Author of both, it is
impossible that the demands of authentic religion should violate anything the natural law establishes
for the guidance of all men at all times. It is no surprise, therefore, that Catholic moral teaching, insofar
as it imposes broad moral requirements for all of our actions as Catholics, actually imposes nothing
more than the dictates of the natural law, of which the Ten Commandments are perhaps the most
succinct and obvious summary.
The Catholic Church has the authority to clarify and confirm not only the Revelation which has been
entrusted to her but the natural law that has been entrusted to all—the twin disclosures of Almighty
God. But while the Church is essential to the transmission and proper understanding of Revelation, she
is not essential to the transmission and understanding of the natural law. With respect to the natural
law, Revelation and grace can improve our ability to see it whole and entire, but it remains written in
the hearts of all, to be everywhere and at all times cherished and explored as the moral foundation of a
genuinely good life.
The Concerns of Public Order are Moral
It is precisely on the basis of natural law morality that activities and ways of life undertaken in the
name of religion intersect with the clear interests of the State. Government need not adjudicate
religious questions (and has no competence to do so) except insofar as citizens claim religious
inspiration for their moral actions. A just government will both welcome the salutary impact of
authentic religion on the lives of citizens and at the same time find itself fully qualified to restrict the
exercise of (necessarily inauthentic) religion should that exercise involve any violation of the natural
law. For the natural law, also deriving from the ordinances of God, must in any case serve as the
framework of justice within which government is obliged to secure, protect and enhance the common
good.
Because government is necessarily concerned with the moral actions of its citizens, and has no
competence to judge matters of religious faith and commitment, the chief failures of religious liberty
occur not when government permits some evil in society to go unpunished but when government forces
those under its rule to act in ways that support some evil. Thus it does not restrict our religious liberty,
or even our more general liberty of conscience, to be surrounded by the evil others do, and indeed there
are many evils which are beyond either the scope or the ability of government to correct, or to correct
without doing more harm than good. But when government insists by its laws, regulations, judgments
and enforcements that we participate in or support some particular action which our religion teaches us
to be immoral, or that we refrain from some particular action toward our neighbors which our religion
morally requires, then the question of religious liberty arises.
For this and many other excellent reasons, government must think long and carefully about forcing
people to do anything, but when push comes to shove (so to speak) government must determine
whether an action it wishes to enforce is or is not a violation of the natural law. If it is, on no account
may a just government require it. If it is doubtful, the government should try very hard not to put itself
in the position of requiring it. If it is certainly not a violation of the natural law, then government may,
after prudent consideration, require it in accordance with the demands of the common good. A similar
analysis is required for an action the government may wish to prohibit. If the action is contrary to the
natural law, it may be prohibited justly to protect the common good, subject to prudence; if the matter
is doubtful, government should strive to avoid direct prohibition; if the action is within the moral
bounds of the natural law, government ought to permit it within the limits of public safety.
Utility of the Natural Law
Please note once again that I do not insist that an admission of the claims of the natural law will solve
all problems, making all things simple. Sadly, there are many reasons—human passion, upbringing,
prejudice, self-interest, cultural-conditioning, ignorance and even personal disorders of various kinds—
which can make it difficult for citizens and even whole cultures to grasp the natural law with complete
accuracy. Nonetheless, the fact of the existence of the natural law, and its natural accessibility to all
persons, is sufficient for its precepts to be required in justice.
As the expression goes, ignorance of the law is no excuse. We cannot, for example, claim to be
unrestricted in our desire to steal or murder simply because we do not recognize (owing to some
personal or cultural deficiency) that stealing and murder are contrary to the natural law. This is, to take
but one example, exactly what is at stake with abortion today. Rather, the moment we protest that,
given our ignorance or rejection of the natural law, some restriction or punishment is necessarily
unfair, well, then the game is up. For the appeal to fairness is precisely an appeal to the natural law, an
appeal which proves its universal force and apprehension by all. Indeed, apart from the moral order
built into nature and inscribed in our hearts, how should we think that anything ought to be fair, and
how should we even understand the concept of fairness?
Therefore, yet again, I do not claim that the recognition of the natural law will make all things simple. I
claim something prior to and more important than that. I claim that the natural law is the only set of
universal principles we have for solving many problems in human affairs, including the problem of
what makes laws just, and including the dilemmas of both church and state with which I began this
essay. The natural law is in fact the very solution God has built into nature to enable us to solve these
problems, in order to pursue the Good.
Conclusion
Let me conclude by emphasizing that if we are to read and apply the natural law rightly, we must begin
by describing things accurately. The right use of language, and in particular a refusal to fudge
meanings or utilize ambivalent terms, is of paramount importance here. By now everyone should be
familiar with the euphemisms that have been used, to take my previous example, for the purpose of
obscuring that abortion is the taking of an innocent human life. Thus the child in the womb is referred
to as “tissue” or “part of the woman’s body”, advocacy of abortion is called being “pro-choice”,
abortion is described as “reproductive medicine”, and if specificity is required, we might hear the term
“pregnancy termination”. None of this is new; those who wish to justify moral evil must always
obfuscate the issue by using terms which appeal to the natural law itself. “Rights” terminology is
another classic way of shifting the ground so that what is contrary to the natural law may be perceived
as demanded by it.
The same thing is occurring with the term “marriage”. In this case, “marriage” is being summarily
redefined so that this same term, so redolent of nature and the natural law by its hallowed use across
thousands of years, may still be used to elicit a favorable response to “couplings” that are not marriage
at all.
Therefore it is no surprise that we saw the same obfuscation creeping into Judge Carole Jackson’s
opinion when she denied Frank O’Brien’s claim that his religious liberty was violated by the HHS
mandate. Recall how she argued that “indirect financial support of a practice, from which the plantiff
himself abstains according to his religious principles,” cannot constitute “a substantial burden on
plaintiff’s religious exercise.” But this is already a species of semantical gamesmanship. The
requirements of the HHS mandate for support of contraception, sterilization and abortion are not
simply “practices” that O’Brien chooses to avoid in accordance with the peculiarities of his religious
observance. We might, for example, choose to avoid television if we wished to live a more ascetical
life, or because we find the programming to be a temptation, without in the least objecting, on religious
grounds, to the provision of television service in subsidized residences for the sick and elderly.
But this is very different. Contraception, sterilization and abortion are moral wrongs which O’Brien’s
religion forbids him both to engage in personally and to support or facilitate in others. He can,
according to the principles of his religion, accept the fact that government does not punish these evils.
He cannot, according to the principles of his religion, accept the fact that government requires him to
support them. Unfortunately, the very need to frame the case solely in terms of religious liberty arises
from the absence of the natural law in American jurisprudence, and this has the grave tendency of
throwing the question into that vast dilemma which I outlined in the beginning—as if the government
must decide how far it will go toward accommodating various peculiarities under the traditional rubric
of religious belief.
But this whole approach is both flawed and dangerous. It has been the burden of this essay to explain
why.