CARDINAL BURKE'S ADDRESS IN KENYA ON LAW AT
SERVICE OF JUSTICE AND TRUTH
"There can be no question that the laws which govern a nation must
be founded upon right reason"
NAIROBI, Kenya, SEPT. 12, 2012 (Zenit.org).- Here is the text of an address
Cardinal Raymond Burke, prefect of the Apostolic Signatura, gave Aug. 27 at
Strathmore University in Nairobi. His talk was titled "Law at the Service of
Justice and Truth."
***
Introduction
It is a pleasure for me to speak to the Law School of Strathmore University. I
express my deepest gratitude to Dr. Luis Franceschi, Dean of the Law School,
for the invitation to speak to you today, and I thank all those who have made
it possible for me to be with you. It is my hope that my presence will
confirm, in some small way, the fundamental service of higher education
which Strathmore University has been faithfully providing since its beginnings
in 1961, and, in particular, the critical service of the Law School.
The topic which I wish to address pertains to the law as servant of justice
and truth. It may seem a somewhat unusual topic to address at a university
which specializes in the study of commerce and information technology. In
fact, it is a most appropriate subject for me to discuss with you who are
devoted to the study of law and with the whole student body of the
University, for, no matter what may be the field of our studies and
professional work, all of us are called to live in society in a right and just
manner, in order that the good of all may be safeguarded and fostered.
In speaking about the law, I must first acknowledge the contemporary
fragility of the rule of law, upon which any stable form of society and
government depends. Such fragility seems to be owed, in good part, to a
profound confusion regarding the rule of law and its foundations. For that
reason, I think it important for us to reflect upon the fundamental question of
the law’s service of truth and justice.[i]
Political Life, Virtue and Law
Aristotle’s reflection on the political life and his preference for the republic as
a form of government help us to understand the foundational importance of
the rule of law. Commenting on Aristotle’s reasons for favoring a republican
form of government, combining good features of both oligarchy and
democracy, Monsignor Robert Sokolowski, renowned professor of the School
of Philosophy at The Catholic University of America in Washington, D.C.,
underlines the essential relationship between a stable political life and the
respect for the norm of law. He writes:
In a republic, a large middle class – middle in both an economic and an
ethical sense – is established between the rich and the poor, and the laws
and not men rule, and they do so for the benefit of the whole city, not for
any particular part. To live this way is a great human accomplishment. It is
a truly exalted exercise of reason for citizens to allow the laws to rule, to
have the strength of reason and character to subordinate themselves to the
law, which they allow to rule for the benefit of the whole. Not all people have
the civic habits and public vision to let the laws and not their own partisan
interests rule over the whole; not all people are immediately capable of being
citizens.[ii]
The stability of any society or government depends upon the education of the
people in the civic virtues which respect the rule of law for the good of all.
If democracy, for example, is “government of the people, by the people, for
the people,” as Abraham Lincoln described the United States government
during the time of the great struggle to eliminate the evil of slavery, it cannot
be reduced to the rule of the majority.[iii] While the rule of the majority can
be qualified, according to a literal understanding, as government “by the
people,” it may well not be government “of the people” and “for the people.”
In other words, the majority of the people may lose respect for the rule of
law in its essential relationship to the common good. Then, the majority
aligns itself with partisan interests and supports laws which deny the
recognition of fundamental rights to a certain class of people, for example, a
law denying to the members of a certain class the right to life, because they
are seen to be a hindrance to the pursuit of the individual interests of those
in power. Government, in that case, cannot be said to be “of the people” and
“for the people.”
Pope Benedict XVI addressed the question of the foundations of law in his
address to the Bundestag during his Pastoral Visit to Germany in September
of 2011. Taking leave from the story of the young King Solomon on his
accession to the throne, he recalled to political leaders the teaching of the
Holy Scriptures regarding the work of politics. God asked King Solomon what
request he wished to make as he began to rule God’s holy people. The Holy
Father commented:
What will the young ruler ask for at this important moment? Success –
wealth – long life – destruction of his enemies? He chooses none of these
things. Instead, he asks for a listening heart so that he may govern God’s
people, and discern between good and evil (cf. 1 Kg 3:9).[iv]
The story of King Solomon, as Pope Benedict XVI observed, teaches what
must be the end of political activity and, therefore, of government. He
declared: “Politics must be a striving for justice, and hence it has to establish
the fundamental preconditions for peace…. To serve right and to fight against
the dominion of wrong is and remains the fundamental task of the
politician.”[v]
Pope Benedict XVI then asked how we know the good and right
which the political order and specifically the law is to safeguard and promote.
While he acknowledged that in many matters “the support of the majority
can serve as a sufficient criterion,”[vi] he observed that such a principle is
not sufficient “for the fundamental issues of law, in which the dignity of man
and of humanity is at stake.”[vii] Regarding the very foundations of the life
of society, positive civil law must respect “nature and reason as the true
sources of law.”[viii] In other words, one must have recourse to the natural
moral law which God has inscribed in every human heart.
Referring to a text of Saint Paul’s Letter to the Romans regarding the natural
moral law and its primary witness, the conscience, Pope Benedict XVI
declared: “Here we see the two fundamental concepts of nature and
conscience, where conscience is nothing other than Solomon’s listening
heart, reason that is open to the language of being.”[ix] Further illustrating
the sources of law in nature and reason by making reference to the popular
interest in ecology as a means of respecting nature, he observed:
Yet I would like to underline a point that seems to me to be neglected, today
as in the past: there is also an ecology of man. Man too has a nature that he
must respect and that he cannot manipulate at will. Man is not merely selfcreating freedom. Man does not create himself. He is intellect and will, but he
is also nature, and his will is rightly ordered if he respects nature, listens to it
and accepts himself for who he is, as one who did not create himself. In this
way, and in no other, is true human freedom fulfilled.[x]
Reflecting upon European culture which developed “from the encounter
between Jerusalem, Athens and Rome -- from Israel’s divine faith, the
philosophical reason of the Greeks and Roman legal thought,”[xi] he,
therefore, concluded: “In the awareness of man’s responsibility before God
and in the acknowledgment of the inviolable dignity of every single human
person, it [European culture] has established criteria of law: it is these
criteria that we are called to defend at this moment in our history.”[xii] While
Pope Benedict XVI’s reflection is inspired by a concern for the state of law in
the European culture, his conclusions regarding the foundations of law and,
therefore, of order in society are clearly universal in application.
Order in Society and the Common Good
If any form of government is to serve a community or nation, society must
recognize a certain order which permits the individual to pursue his own
good, while, at the same time, respecting the good of others who form a
community with him. The good is defined by the order found in the nature of
persons and things, by which the same persons and things are directed to
objective ends. In truth, the individual must understand that his own good
cannot be served, while the good of others and the order of creation are
violated. The individual cannot achieve his proper end and, therefore,
happiness, apart from the respect of the proper end and ultimate happiness
of his neighbor, and the proper end of the things with which he interacts.
Government is, otherwise, reduced to the tyranny of whatever group is able
to prevail by winning the support of a majority.
Without the recognition of the common good, to which the individual good is
essentially related and which it serves, society breaks down and a
government is soon beset by the violence and destruction which is the
inevitable fruit of unbridled individualism and self-pursuit. The Second
Vatican Ecumenical Council described the common good precisely in the
context of the formation of a political community:
Individuals, families, and the various groups which make up the civil
community, are aware of their inability to achieve a truly human life by their
own unaided efforts; they see the need of a wider community in which each
one will make a specific contribution to an even broader implementation of
the common good. For this reason, they set up various forms of political
communities. The political community, then, exists for the common good:
this is its full justification and meaning and the source of its specific and
basic right to exist. The common good embraces the sum total of all those
conditions of social life which enable individuals, families, and organizations
to achieve complete and efficacious fulfillment.[xiii]
The English word, fulfillment, translates the original Latin word, perfectio.
Fulfillment does not signify some self-defined condition but rather the
perfection of the individual or group, according to man’s proper nature and
end.
The laws of a democratic nation, therefore, are to be ordered to the common
good, which, one hopes, will coincide with the will of the majority, but which
will, in any case, not only be laws “by the people” but also laws “of the
people” and “for the people.” The Second Vatican Ecumenical Council also
taught the necessary relationship of the legal and juridical order of a society
with the common good and, therefore, the moral order. It declared:
It follows that political authority, either within the political community as
such or through organizations representing the state, must be exercised
within the limits of the moral order and directed toward the common good
(understood in the dynamic sense of the term) according to the juridical
order legitimately established or due to be established. Citizens, then, are
bound in conscience to obey. Accordingly, the responsibility, the dignity, and
the importance of those who govern is clear.[xiv]
The objectivity of the common good, as it is discovered by right reason in the
natural order, determines the good order of a nation. Laws which safeguard
the common good rest on the reality of the nature and end of the persons
and of the things whom or which they govern. It is essential that citizens be
educated to understand the relationship between the political order and the
common good, in order that they obey the laws. It is essential that
lawmakers and servants of justice understand the meaning of law for the
citizens as individuals and as a community.
In his Encyclical Letter Caritas in Veritate, Pope Benedict XVI takes
up the question of the common good which, in his words, “is sought not for
its own sake, but for the people who belong to the social community and who
can only really and effectively pursue their good within it.”[xv] Dedication to
the common good, as Pope Benedict XVI makes clear, is an obligation
imposed by both justice and charity. He concludes: “The more we strive to
secure a common good corresponding to the real needs of our neighbours,
the more effectively we love them.”[xvi]
Law and Metaphysics
The realism of laws, their foundation upon the objective nature and end of
things, has been, for some time, severely questioned or rejected by a
positivist and utilitarian philosophy. Pope Benedict XVI succinctly describes
the situation in his speech to the Bundestag in September of 2011. Speaking
about the contemporary banning of the discussion of the natural moral law in
public discourse, he declared:
Fundamentally it is because of the idea that an unbridgeable gulf exists
between “is” and “ought”. An “ought” can never follow from an “is”, because
the two are situated on completely different planes. The reason for this is
that in the meantime, the positivist understanding of nature has come to be
almost universally accepted…. A positivist conception of nature as purely
functional, as the natural sciences consider it to be, is incapable of producing
any bridge to ethics and law, but once again yields only functional
answers.[xvii]
Clearly, the positivist view divorces the law from its metaphysical
foundations.
Such a view also clearly excludes from reason anything which is not
demonstrable according to the positivist criteria. Pope Benedict XVI,
therefore concluded:
Anything that is not verifiable or falsifiable, according to this understanding,
does not belong to realm of reason strictly understood. Hence ethics and
religion must be assigned to the subjective field, and they remain extraneous
to the realm of reason in the strict sense of the word. Where positivist reason
dominates the field to the exclusion of all else – and that is broadly the case
in our public mindset – then the classical sources of knowledge for ethics and
law are excluded.[xviii]
Father Edward J. Richard, Missionary of La Salette and distinguished moral
theologian, in his article published in two parts, “Law and Morality: Taking a
Theoretical Break from the Norm,” describes the philosophical underpinnings
of the theory of legal positivism, sometimes also called legal realism.[xix] At
the same time, he examines a parallel development among certain Catholic
moral theologians who follow a moral theory which is called consequentialism
or proportionalism.
The moral theory in question judges the goodness of an act, according to an
intended good consequence, even if the means of achieving the intended
good is evil in itself. Both the legal theory and the moral theory are rooted in
an instrumentalist view of the world. Richard comments:
With norms as means to ends, the legal or moral outcome can never be
indicated by the norm itself. In other words, acting contrary to a norm is not
in itself to be considered morally or legally wrong. In both the legal theory
and the moral theory presented, the rule or norm is considered a guide. One
must consider the relevant circumstances, including the purposes and ends
of the rules and the actions in question, before the moral or legal
determination is reached. Competing values or interests at the root of the
formulation of the rule may, in a given case, give rise to a conflict. Only
when this conflict is resolved in light of the relevant circumstances and
possible outcomes is the legality or morality of the act decided.[xx]
The parallel development among some Catholic moral theologians has added
to the confusion regarding the nature of the law and its service of the
common good. Moral theory, distorted and betrayed by the consequentialist
or proportionalist thesis, is not in a position to carry out its native service of
pointing to the truth about the law and, in fact, participates in the deadly
confusion of legal positivism.
Pope Benedict XVI made reference to the grievous damage done by
such thinking in his Christmas Address to the Roman Curia in 2010. Making
reference to the grave evils of our times, for example, paedophilia, child
pornography, and the abuse of drugs, he commented:
No pleasure is ever enough, and the excess of deceiving intoxication
becomes a violence that tears whole regions apart – and all this in the name
of a fatal misunderstanding of freedom which actually undermines man’s
freedom and ultimately destroys it.[xxi]
He observed that, in order to overcome such evils, their “ideological
foundations,” “a fundamental perversion of the concept of ethos,” must be
uncovered.[xxii]
He then provided a description of the ideological foundations of the
moral evils of our time with these words:
It was maintained – even within the realm of Catholic theology – that there is
no such thing as evil in itself or good in itself. There is only a “better than”
and a “worse than”. Nothing is good or bad in itself. Everything depends on
the circumstances and on the end in view. Anything can be good or also bad,
depending upon purposes and circumstances. Morality is replaced by a
calculus of consequences, and in the process it ceases to exist.[xxiii]
Such thinking is clearly contrary to the moral thinking of the Church which
holds that certain actions are good in themselves, intrinsically good, and
certain actions are evil in themselves, intrinsically evil.[xxiv] The disastrous
effect of such profoundly erroneous thinking upon the concept of law is
evident.
Blessed Pope John Paul II, in his Encyclical Letter Veritatis splendor, refuting
the serious errors of consequentialism or proportionalism, noted the
importance of sound moral teaching for the political order. He recalled the
reason for the Church’s insistence upon the objective moral order, when he
wrote:
The Church’s firmness in defending the universal and unchanging moral
norms is not demeaning at all. Its only purpose is to serve man’s true
freedom. Because there can be no freedom apart from or in opposition to the
truth, the categorical – unyielding and uncompromising – defense of the
absolutely essential demands of man’s personal dignity must be considered
the way and the condition for the very existence of freedom.[xxv]
The recognition of an objective moral order in law is, therefore, necessary, if
freedom is to be served. The Church’s clarity in teaching the moral truth and
in refuting moral error is critical to the sound political order. The Church’s
moral teaching forms the character of the citizens who are her faithful and
also of other men of good will who recognize the truth of her teaching, in
accord with the common good. On the other hand, moralists whose theories
do not correctly account for universal and unchanging moral norms
undermine human freedom in the political order.
Pope John Paul II went on to reflect upon the danger of “a totalitarian
conception of the world” which democracies in the West have deplored in
governments of Marxist inspiration, while at the same time they deny “the
fundamental rights of the human person” and absorb “the religious yearnings
which arise in the heart of every human being” into politics.[xxvi] He
observed:
This is the risk of an alliance between democracy and ethical relativism,
which would remove any sure moral reference from political and social life,
and, on a deeper level, make the acknowledgment of truth impossible.[xxvii]
Pope John Paul II then quoted a telling declaration from his Encyclical Letter
Centesimus annus: “As history demonstrates, a democracy without principles
easily turns into open or thinly disguised totalitarianism.”[xxviii]
The wisdom of Blessed Pope John Paul II’s caution is sadly verified, for
example, in the legal system of the United States which, uncritically
accepting the positivist legal doctrine, has placed the foundation of the laws
upon the shifting sands of relativism. One example of its application will show
that it is not simply a question of theoretical considerations. In a decision of
the United States Supreme Court, in Planned Parenthood of Southeastern
Pennsylvania v. Casey, given on June 29, 1992, the majority opinion
declared:
At the heart of liberty is the right to define one’s own concept of existence, of
meaning, of the universe, and of the mystery of human life.[xxix]
Such language uncovers an understanding of the law which is totally divorced
from any objective reality, any metaphysical principle. According to the
decision, the law and its application must respect the individual’s “concept” of
the world and of human life. The language of the decision condones a form of
individualism and of pursuit of self-interest which is truly totalitarian. Pope
John Paul II’s clarification of the moral truth to be taught in the Church and
his correction of consequentialism and proportionalism are most timely also
for the world of politics.
I note that the term, values, which is commonly used today in the discussion
of the relationship between morality and law, can be problematic, for it
comes from the economic world and the relative assessment of the worth of
things. I prefer the word, goods or virtues. In other words, values can
change, according to human assessment, while goods or virtues, inherent in
the God-given nature and end of persons and things, endure.
Law in Relationship to Truth and Justice
What makes law true and just, that is, in conformity with the God-given
nature of persons and things, and their proper ends? The perennial answer to
this critical question is the natural moral law. The natural law establishes the
first and evident principles which guarantee the realism and, therefore, the
justice of laws.
Law is more than the command of the sovereign or the will of the majority. It
has its foundation in the unchanging truth about ourselves and our world,
which is safeguarded by the natural moral law written by God upon every
human heart. The natural moral law alone gives positive law the deep and
stable foundation which it requires and which can truly bind individuals and
communities.
Wolfgang Waldstein has shown that knowledge of the law of nature or the
natural law as the foundation of the legal order is evident in the earliest
known legal documents. He concludes: “As far back as we have sources
concerning legal problems we find the clear awareness of the fact that man
finds himself in a legal order not produced by man himself, but being part of
the creation of the world.”[xxx] Waldstein, citing the ancient sources, for
example, Cicero, refutes the false claim that the concept of the natural law
rests upon the so-called “naturalistic fallacy,” showing that the claim “departs
from the positivistic presupposition that nature is only material reality.”[xxxi]
Reflecting on the results of the false claim, advanced not only by legal
theorists but also by certain moral theologians, Waldstein quotes a passage
from Pope John Paul II’s Encyclical Letter Evangelium vitae, which pertains
especially to the service of truth and justice at the heart of law:
If, as a result of the tragic obscuring of the collective conscience, an attitude
of skepticism were to succeed in bringing into question even the fundamental
principles of the moral law, the democratic system itself would be shaken in
its foundations, and would be reduced to a mere mechanism for regulating
different and opposing interests on a purely empirical basis.[xxxii]
Natural law expresses the metaphysical order which can be, has been and is
known by the use of human reason.
The natural law expresses the end to which our practical action must tend, if
it is to be true and free. Saint Thomas Aquinas declared:
Hence this is the first precept of law, that good is to be done and pursued,
and evil is to be avoided.[xxxiii]
The good for man is that which most perfectly corresponds to his nature and
finality. Saint Thomas Aquinas immediately derives other precepts from the
first precept of the natural law. The first of these is “whatever is a means of
preserving human life, and of warding off its obstacles, belongs to the natural
law.”[xxxiv]
The natural law presupposes that our consideration of particular practical
actions or laws, for example, is based on the proper ends of persons and
things, and not on my individual purposes. It presupposes that man, through
the use of reason, can know the proper ends of persons and things, and
respect them in the political order. Saint Thomas Aquinas described the
relationship of reason and the natural law:
[T]he precepts of the natural law are to the practical reason, what the first
principles of demonstrations are to the speculative reason; because both are
self-evident principles.[xxxv]
Natural law, therefore, establishes positive law upon metaphysical principles
of the good and freedom of man, and safeguards it against the tyranny of
self-interest and of individual purposes.
Monsignor Robert Sokolowski addresses the relationship of the natural law to
the Church’s teaching of it. Often, natural law doctrine is rejected in Europe
and the United States of America as the attempt of a religious confession to
impose its confessional beliefs on the general population. Sokolowski reminds
us that the teaching of the natural law in the Sacred Scriptures does not
destroy its “natural visibility” to human reason.[xxxvi] In other words, the
Church did not invent the notion of the natural law. He insightfully cautions
us against the pitfall of seeing the natural law proclaimed in the Sacred
Scriptures as an expression of God’s purposes, rather than an expression of
the order which He has written in nature and inscribed in the “hearts of
men,” as Saint Thomas Aquinas teaches us.[xxxvii]
The inscription of the natural law in the heart of man means that man, by the
use of reason, is meant to know the true ends of things and to act
accordingly. It is not a question of divine voluntarism. Sokolowski observes:
I would suggest that when Aquinas says that the natural law is written in the
hearts of men, he is referring to the capacity for truth that we have been
describing when we said that the natural ends of things must be
distinguished from our own purposes and from convention. This elementary
differentiation, this recognition that my purposes are not all there is, and that
the way we do things is not all there is, is a way of being truthful that is
achieved by the heart, which if it is sound can cut through the impediments
of being impulsive, obtuse, immature, and vicious.[xxxviii]
The understanding of man’s capacity for truth must be the inspiration of the
moral and civic education of children and young people who, as a result of
the education, will be freed from the slavery of their individual purposes to
serve their proper good and end, and the proper good and end of their fellow
citizens and of the created order.
Conclusion
On March 30, 2006, Pope Benedict XVI spoke to the members of the
European Popular Party, addressing the role of the Church in the political
order. He brought to mind the irreplaceable contribution of the Church to
democracy in Europe, both historically and at present, through the formation
of citizens in the Christian virtues. He cautioned that the elimination of
Christians, as Christians, from the political order would result in the loss of
the strength which the Christian faith and its practice bring to any nation or
political body. He described the perennial service of the Church and of her
teaching to the civic community. He stated:
It must not be forgotten that, when Churches or ecclesial communities
intervene in public debate, expressing reservations or recalling various
principles, this does not constitute a form of intolerance or an interference,
since such interventions are aimed solely at enlightening consciences,
enabling them to act freely and responsibly, according to the true demands
of justice, even when this should conflict with situations of power and
personal interest.[xxxix]
He had already presented the same teaching, in a more solemn manner, in
his Encyclical Letter Deus caritas est, in which he discussed the relationship
of justice, politics and ethics.
Regarding the Church’s involvement in the political order, he declared in
Deus caritas est:
Faith enables reason to do its work more effectively and to see its proper
object more clearly. This is where Catholic social teaching has its place: it
has no intention of giving the Church power over the State. Even less is it an
attempt to impose on those who do not share the faith ways of thinking and
modes of conduct proper to faith. Its aim is simply to help purify reason and
to contribute, here and now, to the acknowledgment and attainment of what
is just.[xl]
Pope Benedict XVI makes it clear that the Church’s social teaching “argues
on the basis of reason and natural law, namely, on the basis of what is in
accord with the nature of every human being.”[xli]
Pope Benedict XVI makes it clear that the principles which he has enunciated
“are not truths of faith, even though they receive further light and
confirmation from faith; they are inscribed in human nature itself and
therefore they are common to all humanity.”[xlii] The Christian faith does not
contradict human reason but gives it inspiration and strength in considering
what is right and just, above all, in the political order. Robert Sokolowski
observes: “What seemed noble and decent in the natural order remains so,
and it is confirmed in its goodness by being involved in this new context of
grace.”[xliii]
There can be no question that the laws which govern a nation must be
founded upon right reason, distinguishing ends from purposes, and
respecting fully the natural law which God has written upon every human
heart. In the present situation, the Church’s service of the world demands of
her, above all, a witness to the foundation of the political order upon the
unchanging precepts of the natural moral law, which God has taught and
teaches to all men and women of every place and time. In such a political
order, law will indeed serve all that is true and just.
Raymond Leo Cardinal BURKE
--- --- --NOTES
[i] Regarding the entire question of the fragility of the rule of law and the
metaphysical foundation of law, I draw heavily upon an earlier presentation
given on July 10, 2006, at the 9th Deutsch-Amerikanisches Kolloquium, held
at Wildbad Kreuth in Germany and published under the title, “The Natural
Moral Law: Foundation of Legal Realism,” in Die fragile Demokratie – The
Fragility of Democracy, ed. Anton Rauscher, Berlin: Duncker & Humblot,
2007, pp. 29-45.
[ii] Robert Sokolowski, “The Human Person and Political Life,” in Christian
Faith and Human Understanding: Studies on the Eucharist, Trinity, and the
Human Person, Washington, D.C.: The Catholic University of America Press,
2006, pp. 184-185.
[iii] Abraham Lincoln, “Address at Gettysburg, Pennsylvania,” 19 November
1863, in Abraham Lincoln: Speeches and Writings 1859-1865, New York: The
Library of America, 1989, p. 536.
[iv] “Was wird sich der junge Herrscher in diesem Augenblick erbitten? Erfolg
– Reichtum – langes Leben – Vernictung der Feinde? Nicht um diese Dinge
bitter er. Er bittet: „Verleih deinem Knecht ein hörendes Herz, damit er dein
Volk zu regieren und das Gute vom Bösen zu unterscheiden versteht“ (1 Kön
3,9).” Benedictus PP. XVI, Allocutio “Iter apostolicum in Germaniam: ad
Berolinensem foederatum coetum oratorum,” 22 Septembris 2011, Acta
Apostolicae Sedis 103 (2011), p. 663. English translation: L’Osservatore
Romano Weekly Edition in English, 28 September 2011, p. 6.
[v] “Politik muss Mühen um Gerechtigkeit sein und so die
Grundvoraussetzung für Frieden schaffen… Dem Recht zu dienen und der
Herrschaft des Unrechts zu wehren ist und bleibt die grundlegend Aufgabe
des Politikers.” Ibid., p. 664. English translation: Ibid., p. 6.
[vi] “kann die Mehrheit ein genügendes Kriterium sein.” Ibid., p. 664. English
translation : Ibid., p. 6.
[vii] “in den Grundfragen des Rechts, in denen es um die Würde des
Menschen und der Menschheit geht.” Ibid., p. 664. English translation: Ibid.,
p. 6.
[viii] “Natur und Vernunft als die wahren Rechtsquellen.” Ibid., p. 665.
English translation: Ibid., p. 6.
[ix] “Hier erscheinen die beide Grundbegriffe Natur und Gewissen, wobei
Gewissen nichts anderes ist als das hörende Herz Salomons, als die der
Sprache des Seins geöffnete Vernunft.” Ibid., p. 666. English translation:
Ibid., p. 6.
[x] “Ich möchte aber nachdrücklich einen Punkt ansprechen, der nach wie
vor – wie mir scheint – ausgeklammert wird: es gibt auch eine Ökologie des
Menschen. Auch der Mensch hat eine Natur, die er achten muß und die er
nicht beliebig manipulieren kann. Der Mensch is nicht nur sich selbst
machende Freiheit. Der Mensch macht sich nicht selbst. Er ist Geist und
Wille, aber er ist auch Natur, und sein Wille ist dann recht, wenn er auf die
Natur achtet, sie hört und such annimmt also der, der er ist und der sich
nicht selbst gemacht hat. Gerade so und nur so vollzieht sich wahre
menschliche Freiheit.” Ibid., p. 668. English translation: Ibid., p. 7.
[xi] “aus der Begegnung von Jerusalem, Athen und Rom – aus der
Begegnung zwischen dem Gottesglauben Israels, der philosophischen
Vernunft der Griechen und dem Rechtsdenken Roms.” Ibid., p. 669. English
translation: Ibid., p. 7 (corrected by the author).
[xii] “Sie hat im Bewußtsein der Verantwortung des Menschen vor Gott und
in der Anerkenntnis der anantastbaren Würde des Menschen, eines jeden
Menschen, Maßstäbe des Rechts gesetzt, die zu verteidigen uns in unserer
historischen Stunde aufgegeben ist.” Ibid., p. 669. English translation: Ibid.,
p. 7.
[xiii] “Homines, familiae et varii coetus, qui communitatem civilem
constituunt, propriae insufficientiae ad vitam plene humanam instituendam
conscii sunt et necessitatem amplioris communitatis percipiunt, in qua
omnes, ad commune bonum semper melius procurandum, cotidie proprias
vires conferant. Quapropter communitatem politicam secundum varias
formas constituunt. Communitas ergo politica propter illud commune bonum
exsistit, in quo suam plenam iustificationem et sensum obtinet, et ex quo ius
suum primigenum et proprium depromit. Bonum vero commune summam
complectitur earum vitae socialis condicionum, quibus homines, familiae et
consociationes, suam ipsorum perfectionem plenius atque expeditius
consequi possint.” Concilium Oecumenicum Vaticanum II, Constitutio
Pastoralis Gaudium et spes, “De Ecclesia in mundo huius temporis,” 7
Decembris 1965, Acta Apostolicae Sedis, 58 (1966), 1095-1096, n. 74.
English translation: Vatican Council II: The Conciliar and Post Conciliar
Documents, ed. Austin Flannery, O.P., Collegeville, Minnesota: Liturgical
Press, 1975, pp. 980-981, no. 74.
[xiv] “Sequitur item auctoritatis politicae exercitium sive in communitate ut
tali, sive in institutis rem publicam repraesentantibus, semper intra fines
ordinis moralis ad effectum deducendum esse, ad commune bonum – et
quidem dynamice conceptum – procurandum, secundum ordinem iuridicum
legitime statutum vel statuendum. Tunc cives ad obedientiam praestandam
ex conscientia obligantur. Exinde vero patet responsibilitas, dignitas et
momentum eorum, qui praesunt.” Ibid, p. 1096, n. 74. English translation:
Ibid., p. 981, no. 74.
[xv] “per se ipsum conquisitum, sed personarum gratia, quae communitatem
socialem participant atque in ea tantum reapse et efficaciter bonum suum
consequi possunt.” Benedictus PP. XVI, Litterae encyclicae Caritas in veritate,
“De humana integra progressione in caritate veritateque,” 29 Iunii 2009,
Acta Apostolicae Sedis, 101 (2009), p. 645, n. 7. English translation: Città
del Vaticano: Libreria Editrice Vaticana, 2009, p. 9, no. 7.
[xvi] “Eo efficacius proximus amatur, quo magis bonum commune colitur,
quod veris necessitatibus occurrat.” Ibid., p. 645, n. 7. English translation:
Ibid., p. 10, no. 7.
[xvii] “Grundlegend is zunächst die These, dass zwischen Sein und Sollen ein
unüberbrückbarer Grabe ist. Aus Sein könne kein Sollen folgen, weil es sich
da um zwei völlig verschiedene Bereiche handle. Der grund dafür ist das
inzwischen fast allegemein angenommene positivistische Verständnis von
Natur.... Ein positivischer Naturbegriff, der nie Natur rein funktional versteht,
so wie die Naturwissenschaft sie erkennt, kann kein Brücke zu Ethos und
Recht herstellen, sondern widerum nur funktionale Antworten hervorrufen.”
Benedictus PP. XVI, Allocutio “Iter apostolicum in Germaniam: ad
Berolinensem foederatum coetum oratorum,” 22 Septembris 2011, Acta
Apostolicae Sedis 103 (2011), p. 666. English translation: L’Osservatore
Romano Weekly Edition in English, 28 September 2011, p. 7.
[xviii] “Was nicht verifizierbar oder falsifizierbar ist, gehört danach nicht in
den Bereich der Vernunft im strengen Sinn. Deshalb müssen Ethos und
Religion dem Raum des Subjektiven zugewiesen werden und fallen aus dem
Bereich der Vernunft im strengen Sinn des Wortes heraus. Wo die alleinige
Herrschaft der positivistischen Vernunft gilt – und das ist in unserem
öffenlichen Bewußtsein weithin der Fall -- , da sind die klassischen
Erkenntnisquellen für Ethos und Recht außer Kraft gesetzt.“ Ibid., p. 667.
English translation: Ibid., p. 7.
[xix] Edward J. Richard, M.S., “Law and Morality: Taking a Theoretical Break
from the Norm,” Studia Moralia, 35 (1997), 427-443; and 36 (1998), 239265.
[xx] Edward J. Richard, M.S., “Law and Morality: Taking a Theoretical Break
from the Norm,” Studia Moralia, 36 (1998), 255.
[xxi] “Ogni piacere diventa insufficiente e l’eccesso nell’inganno dell’ebbrezza
diventa una violenza che dilania intere regioni, e questo in nome di un fatale
fraintendimento della libertà, in cui proprio la libertà dell’uomo viene minata
e alla fine annullata del tutto.” Benedictus PP. XVI, Allocutio “Ad Curiam
Romanam: Omina Nativitatis,” 20 Decembris 2010, p. 36. English
translation: L’Osservatore Romano Weekly Edition in English, 22-29
December 2010, p. 13.
[xxii] “fondamenti ideologici.” “una perversione di fondo del concetto di
ethos.” Ibid., p. 36. English translation: Ibid., p. 13.
[xxiii] “Si asseriva – persino nell’ambito della teologia cattolica – che non
esisterebbero né il male in sé, né il bene in sé. Esisterebbe soltanto un
«meglio di» e un «peggio di». Niente sarebbe in se stesso bene o male. Tutto
dipenderebbe dalle circostanze e dal fine inteso. A seconda degli scopi e delle
circostanze, tutto potrebbe essere bene o anche male. La morale viene
sostituita da un calcolo delle conseguenze e con ciò cessa di esistere.” Ibid.,
p. 37. English translation: Ibid., p. 13.
[xxiv] Cf. Catechismus Catholicae Ecclesiae, Città del Vaticano: Libreria
Editrice Vaticana, 1997, nn. 1753 et 1756. English translation: Catechism of
the Catholic Church, 2nd ed., Città del Vaticano: Libreria Editrice Vaticana,
1997, nos. 1753 and 1756.
[xxv] “Ecclesiae firmitudo in moralibus normis universalibus
immutabilibusque tuendis nihil habet contumeliosi; verae hominis libertati
solummodo inservit: quandoquidem praeter vel contra veritatem nulla
libertas habetur, absoluta defensio, nimirum laxamentis et accomodationibus
amotis, earum rerum, quas omnino necessarioque hominis personalis
dignitas postulat, via est dicenda et condicio ipsius exsistentiae libertatis.”
Ioannes Paulus PP. II, Litterae encyclicae Veritatis splendor, “De quibusdam
quaestionibus fundamentalibus doctrinae moralis Ecclesiae,” 6 Augusti 1993,
Acta Apostolicae Sedis, 85 (1993), 1209, n. 96. English translation: Vatican
City State: Libreria Editrice Vaticana, p. 145, no. 96.
[xxvi] “totalitaria mundi visione... ob repudiationem fundamentalium iurium
personae humanae... religiosae postulationis quae exsistit in corde cuiusvis
hominis....” Ibid., 1212, n. 101. English translation: Ibid., p. 151, no. 101.
[xxvii] “est discrimen foederis inter democratiam et ethicum relativismum,
qui convictum civilem privat quavis tuta morali ratione eum efficiendo
omnino veritatis agnitione nudatum.” Ibid., 1212, n. 101. English translation:
Ibid., pp. 151-152, no. 101.
[xxviii] “Populare tandem regimen principiis carens, in totalitarismum
manifestum occultumve prompte vertitur, ut hominum annales
commonstrant.” Ioannes Paulus PP. II, Litterae encyclicae Centesimus annus,
“Saeculo ipso Encyclicis ab editis litteris «Rerum novarum» transacto,” 1 Maii
1991, Acta Apostolicae Sedis, 83 (1991), 850, n. 46. English translation:
Vatican City State: Libreria Editrice Vaticana, p. 89, no. 46 (corrected by the
author).
[xxix] Planned Parenthood v. Casey, 505 U.S. 833, 852 (1992).
[xxx] Wolfgang Waldstein, “Natural law and the defence of life in Evangelium
Vitae,” in Evangelium Vitae: Five Years of Confrontation with the Society
(Proceedings of the Sixth Assembly of the Pontifical Academy for Life, Vatican
City, 11-14 February 2000), ed. Juan de Dios Vial Correa and Elio Sgreccia,
Vatican City State: Libreria Editrice Vaticana, 2001, p. 225. Cf. Wolfgang
Waldstein, “The capacity of the human mind to know natural law,” in The
Nature and Dignity of the Human Person as the Foundation of the Right To
Life: The Challenges of the Contemporary Cultural Context (Proceedings of
the Eighth Assembly of the Pontifical Academy for Life, Vatican City, 25-27
February 2002), ed. Juan de Dios Vial Correa and Elio Sgreccia, Vatican City
State: Libreria Editrice Vaticana, 2003, pp. 58-63; and Wolfgang Waldstein,
Ins Herz geschrieben: Das Naturrecht als Fundament einer menschlichen
Gesellschaft, Augsburg: Sankt Ulrich Verlag, 2010.
[xxxi] Wolfgang Waldstein, “The responsibility of the law towards the
applications of biotechnologies of man,” in Human Genome, Human Person
and the Society of the Future (Proceedings of the Fourth Assembly of the
Pontifical Academy for Life, Vatican City, 23-25 February 1998), ed. Juan de
Dios Vial Correa and Elio Sgreccia, Vatican City State: Libreria Editrice
Vaticana, 1999, p. 399.
[xxxii] “Si autem, ob omnium conscientiae miserrimam obtenebrationem,
sceptica ratio in dubium prima principia quoque moralis legis devocat, ipsa
democratica institutio funditus evertitur atque ad meracam machinationem
redigitur, quae re diversa dissonaque commoda moderatur.” Ioannes Paulus
PP. II, Litterae encyclicae Evangelium vitae, “De vitae humanae inviolabili
bono,” 25 Martii 1995, Acta Apostolicae Sedis, 87 (1995), 482, n. 70. English
translation: Vatican City State: Libreria Editrice Vaticana, p. 128, no. 70. It is
interesting to note that the translation of the title in English is “On the Value
and Inviolability of Human Life,” while a more accurate translation of the
Latin title would be: “On the Inviolable Good of Human Life.”
[xxxiii] “Hoc est ergo primum praeceptum legis, quod bonum est faciendum
et prosequendum, et malum vitandum.” Summa theologiae, I-IIae, q. 94,
art. 2. English translation: St. Thomas Aquinas, Summa Theologica,
Complete English Edition, tr. Fathers of the English Dominican Province,
Westminster, Maryland: Christian Classics, 1981, Vol. 2, p. 1009.
[xxxiv] “pertinet ad legem naturalem ea per quæ vita hominis conservatur,
et contrarium impeditur.” Summa theologiae, I-IIae, q. 94, art. 2. English
translation: Ibid., p. 1009.
[xxxv] “præcepta legis naturæ hoc modo se habent ad rationem practicam,
sicut principia prima demonstrationum se habent ad rationem speculativam:
utraque enim sunt quædam principia per se nota.” Summa theologiae, I-IIae,
q. 94, art. 2. English translation: Ibid., p. 1009.
[xxxvi] Robert Sokolowski, “What Is Natural Law?: Human Purposes and
Natural Ends,” in Christian Faith and Human Understanding: Studies on the
Eucharist, Trinity, and the Human Person, Washington, D.C.: The Catholic
University of America Press, 2006, p. 229. Cf. Wolfgang Waldstein, “The
capacity of the human mind to know natural law,” p. 65.
[xxxvii] “Sed lex scripta in cordibus hominum est lex naturalis.” Summa
theologiae, I-IIae, q. 94, art. 6. English translation: Ibid., p. 1012.
[xxxviii] Sokolowski, “What Is Natural Law?: Human Purposes and Ends,” pp.
230-231.
[xxxix] Benedictus PP. XVI, Allocutio “Ad Congressum a «Populari Europae
Factione» provectum,” 30 Martii 2006, Acta Apostolicae Sedis, 98 (2006),
344. The allocution was delivered in English.
[xl] “Fides rationi tribuit quo melius compleat munus suum meliusque hoc
quod proprium est sibi intueatur. Hic reponitur catholica doctrina socialis:
quae non vult Ecclesiae potestatem inferre in Civitatem. Neque iis qui fidem
non participant imponere cupit prospectus et se gerendi modos huius
proprios. Simpliciter prodesse cupit ad rationem purificandam suumque
adiumentum afferre ita ut quod iustum habetur, hic et nunc agnosci ac
postea ad rem perduci possit.” Benedictus PP. XVI, Litterae encyclicae Deus
caritas est, “De christiano amore,” 25 Decembris 2005, Acta Apostolicae
Sedis, 98 (2006), 239, n. 28. English translation: Vatican City State: Libreria
Editrice Vaticana, p. 46, no. 28.
[xli] “argumentatur initium sumens a ratione et a naturali iure, id est ab eo
quod congruit naturae cuiusque personae humanae.” Ibid., 239, n. 28.
English translation: Ibid., p. 46, no. 28.
[xlii] Pope Benedict XVI, Allocutio “Ad Congressum a «Populari Europae
Factione» provectum,” 30 Martii 2006, Acta Apostolicae Sedis, 98 (2006),
345.
[xliii] Sokolowski, “What Is Natural Law?: Human Purposes and Natural
Ends,” p. 233.