THE CRISIS OF LAW
On Nov. 10, the department of jurisprudence at the Free University of the Blessed Mother's Assumption (LUMSA) in Rome conferred an honorary doctorate upon Cardinal Ratzinger, Prefect of the Congregation for the Doctrine of the Faith. The following was excerpted from his acceptance speech as recorded by the Zenit news service, based in Rome.
Church and law, faith and law are united by a profound bond and related in a variety of ways. Suffice it to recall that the fundamental part of the Old Testament canon is under the title Torah (law). Israel's liberation from Egypt did not end with the exodus — it only began. It became full reality only when Israel received a juridical ordering from God, which regulated its relation to God, with the community of the people, and with each individual in the community, as well as its relation to foreigners: Common law is a condition of human liberty.
As a result, the Old Testament ideal of the pious person was the zaddik — the man who lives justly and acts justly according to the order of the law given by God. In the New Testament, in fact, the word zaddik was substituted by the term pistos: The essential attitude of the Christian is faith, which renders him “just.” But how did the importance of law fade? Was the juridical ordering of the environment turned away from the sacred and allowed to become simply profane?
This problem has been intensely debated, especially since the 16th century Reformation, due to the fact that the concept of “law” (Torah) appears in Pauline writing with problematic accents and later, in Luther, is considered diametrically opposed to the Gospel.
The development of law in modern times has been profoundly characterized by these problems. Two current risks to law [present] a theological component and, therefore, refer not only to jurists but also to theologians.
Law at the Mercy Of the Majority
The “end of metaphysics,” which in broad sectors of modern philosophy is superimposed as an irreversible fact, has led to juridical positivism which, today especially, has taken on the form of the theory of consensus: If reason is no longer able to find the way to metaphysics as the source of law, the state can only refer to the common convictions of its citizens‘values — convictions that are reflected in the democratic consensus. Truth does not create consensus, and consensus does not create truth as much as it does a common ordering. The majority determines what must be regarded as true and just. In other words, law is exposed to the whims of the majority, and depends on the awareness of the values of the society at any given moment, which in turn is determined by a multiplicity of factors.
This is manifested concretely by the progressive disappearance of the fundamentals of law inspired in the Christian tradition.
Matrimony and family are increasingly less the accepted form of the statutory community and are substituted by multiple, fleeting and problematic forms of living together. The relation between man and woman becomes conflictive, as does the relation between generations. The Christian order of time is dissolved; Sunday disappears and is increasingly substituted by changing ways of free time. The sense of the sacred no longer has any meaning for law; respect for God and for that which is sacred to others is now, with difficulty, regarded as a juridical value; it is displaced by the allegedly more important value of a limitless liberty in speech and judgment.
Even human life is something that can be disposed of: Abortion and euthanasia are no longer excluded from juridical ordering. Forms of manipulation of human life are manifested in the areas of embryo experimentation and transplants, in which man arrogates to himself not only the ability to dispose of life, but also of his being and of his development.
Thus has the point recently been reached that the essential difference between man and animal is up for debate. Because in modern states metaphysics, and with it, natural law, seem to be definitely depreciated, there is an ongoing transformation of law, the ulterior steps of which cannot yet be foreseen; the very concept of law is losing its precise definition.
The Logic of Terrorism
There is also a second threat to law, which today seems to be less present than it was 10 years ago, but it can re-emerge at any moment and find a link with the theory of consensus. I am referring to the dissolution of law through the spirit of utopia, just as it assumed a systematic and practical form in Marxist thought. The point of departure was the conviction that the present world is evil — [characterized by] oppression and lack of liberty; [this] must be substituted by a better way of planning and working. In this case, the real and ultimate source of law becomes the idea of the new society, which is moral, of juridical importance and useful to the advent of the future world. Based on this criterion, terrorism was articulated as a totally moral plan: Killings and violence appeared like moral actions, because they were at the service of the great revolution, of the destruction of the present evil world and of the great ideal of the new society. Even here, the end of metaphysics is a given, whose place is taken in this case not by the consensus of contemporaries, but by the ideal model of the future world.
To eliminate law is to despise man; where there is no law there is no liberty.
... The fact that since the 1950s law and order have become an insult — even worse, they have become regarded as Fascist — stems from these conceptions. Moreover, to turn law into irony was a precept of National Socialism. In the so-called years of struggle, law was consciously castigated and placed in opposition to so-called healthy popular feeling. The Führer was successively declared the only source of law and, as a result, absolute power replaced law. The denigration of law is never in any way at the service of liberty, but is always an instrument of dictatorship. To eliminate law is to despise man; where there is no law there is no liberty.
At this point an answer can be given to the basic question I have been addressing in these reflections, but perhaps only in summary form. What can faith and theology do in this situation for the defense of law? I would like to attempt an answer to this question, in a summary and certainly very insufficient way, by proposing the following two theses:
How Faith Can Defend Law
First, the elaboration and structure of law is not immediately a theological problem, but a problem of recta ratio — right reason. Beyond opinions and currents of thought, this right reason must try to discern what is just. This is the essence of law, and is in keeping with the internal need of the human being everywhere to [recognize] that which is destructive of man. It is the duty of the Church to contribute to the sanity of ratio and, through the just education of man, to preserve in his reason the capacity to see and perceive. Whether this right is to be called a “natural right” or something else is a secondary problem. But wherever this interior demand of the human being can no longer be perceived [due to changing mores], the human being is undermined in his dignity and in his essence.
Second, the Church must make an examination of conscience on the destructive forces of law, which have had their origin in unilateral interpretations of faith and have contributed to determine the history of this century. Its message goes beyond the realm of simple reason and redirects [us] to new dimensions of liberty and communion. But faith in the Creator and his creation is inseparably joined to faith in the Redeemer and the redemption. Redemption does not dissolve creation and its order, but, on the contrary, restores the possibility of perceiving the voice of the Creator in his creation — and, consequently, of better understanding the foundations of law. Metaphysics and faith, nature and grace, law and Gospel are not opposed but are, instead, intimately connected.
Christian love, as the Sermon on the Mount proposes, can never become the foundation of statute law. It goes well beyond this and can only be realized, at least in an embryonic way, in faith. But this does not go against creation and its law; rather, it is based on it. Where there is no law, even love loses its vital context. Christian faith respects the nature of the state itself, especially of the state of a pluralist society. However, it also recognizes its co-responsibility, in order that the fundamentals of law continue, to remain visible. In this way, it [helps ensure] that the state is not deprived of direction and simply at the mercy of changing currents.
- December 5-11, 1999