Take a look at our papers in the April 2012 Archive and offer your opinion or ask questions of the paper author. We look forward to hearing from you.

The Online Conference is now is session.  Please take a look at our papers and add your comments and questions. To see all the paper headers on one page click the April 2011 archive button on the left side of the page.

Dr. Sebastian Mahfood, OP, is Associate Professor of Intercultural Studies at Kenrick-Glennon Seminary in St. Louis, MO. He graduated with an MA in Moral Philosophy from Holy Apostles in January, 2009, and  an MA in Moral Theology from Holy  Apostles. A Lay Dominican, Sebastian lives in St. Louis with his wife, Dr. Stephanie Mahfood, and children, Alexander and Eva Ruth.

CYBER-CHASTITY: THE MORAL RESPONSE TO INTERACTIVE PORNOGRAPHY

      I do not understand what I do.  For what I want to do I do not do, but what I hate I do.  As it is, it is no longer I myself who do it, but it is sin living in me. —Rom. 7:15, 17

      We [may] know perfectly well the right thing which is to be done, but we are not doing it.  Or, conversely . . . we [may] know perfectly well that what we are doing is something we should not be doing, and yet we do it.  —D. Q. McInerny, A Course in Thomistic Ethics (p. 213)

The specific difference between traditional forms of pornography and those that exist within cyberspace lies not in ubiquity but in interactivity.  In cyberspace, we become the pornography that we want to see in the world, as we interact with others who have the same desire to objectify themselves.  Pornography, which presupposes the fungibility of the human person, goes a step further when it becomes interactive, by providing the illusion that a relationship actually exists between the persons involved, when the aim is nothing more substantive than corporeal titillation.  This is a problem both of reason and of faith.  It is a problem of reason because the voluntary abuse of an interpersonal relationship for the purpose of self-gratification is an act unworthy of the dignity of the human person.  Our reduction of the human person to his or her sexual parts threatens spiritual and material unity insofar as it leads to our using others as means to physical or emotional gratification, rather than to our responding to them with love.  It is a problem of faith because our acting out sexually via communicative media is an inversion of the nuptial meaning of the body, which John Paul II draws from Genesis 2:24 as the idea that persons seek authentic relationships and participate within them.  Persons engaging in interactive online sex do neither.  The only way the object of human sexuality can be spoken of as a good is by the right object’s being pursued with the correct intentions and in the appropriate circumstances.¹ None of this happens in the incompleteness of the sexual act that results from onscreen sexual activity.  If our sexual acts, which John Paul II defines as having a corresponding bodily and spiritual expression, are incomplete acts, they can never be anything more than perversions of reality and, therefore, devoid of real meaning.

It can rightly be established that pornography is a base appeal to the concupiscible and irascible appetites, since it is a means for arousing the sensual desires and emotions in a manner disproportionate with human reason.  What is pursued in the movement toward sexual gratification, to paraphrase G. K. Chesterton, is a search for God.  At the bottom of that search, then, is hope, which resides in the irascible appetite.  Such hope is “concerned with the good precisely as a future [and truly attainable] good, and in this too it is comparable to desire, [a resident of the concupiscent appetite] which is concerned with the absent good”.² In this way, the irascible passions derive from the concupiscible appetite and terminate within them.  For a person to pursue sexual gratification through the medium of cyberspace, he or she has to act through communicative media that can do little more than turn the act into one of simultaneous voyeurism and exhibitionism.  The search for God, that in a bordello would at least be a physical union of two bodies, becomes a “virtual” union of screen shots and camera angles and, at best, nothing more than mediated mutual autoerotism.  The culpability of the will in assenting to the act is two-fold:  first, for the acting person’s deliberately provoking lust and, second, for his or her failing to check lust when it does appear.  Professor D. Q. McInerny writes that “[t]he initial expressions of any passion are not in themselves sinful, but whether or not they will subsequently involve sin all depends upon the manner in which the subject reacts to them.  So long as reason prevails, sin will be staved off.” ³ If the rational power becomes corrupt in the course of repeated exposure to the objectifications of the flesh, then the will, which is the rational appetite, loses its sense of direction and begins selecting, from among the goods presented to it, those that have no properties that transcend sensual and emotional arousal and gratification.

In a society that promotes the objectification of the human body for the purpose of commodifying it, the acting person has greater difficulty becoming a counter-cultural phenomenon and resisting the increasing appeals to his or her lower appetites.  The reason for this is found in the way in which any given act is demonstrative of virtue or vice.  As D. Q. McInerny explains, “Any act over which a man has dominion is properly called a human act, but not those over which he does not have dominion, even though they occur in him, e.g., digesting and growing and the like.” ⁴ While an act over which man has no dominion is morally neutral, acts over which he does exercise dominion can be either good or bad.  For an act over which man has dominion to be good, it has to be good in its intention, its object, and its circumstances; so that the sexual act must be properly oriented to its true end in light of these three fonts of morality, in order for it to be considered a good act.  Pornography is good in none of these fonts, for the intention of the pornographer is to pander to the flesh by arousing the passions of a multitude of others, without himself being physically and spiritually present to the human persons being thus attracted.  For a reason such as this, St. Thomas writes, “Every defect of human reason has its source in one way or another in carnality.” ⁵ In its synchronous form pornography titillates, but ultimately refuses the relationship with the flesh it seems to invite; were it not to refuse, it would more properly be called fornication.  In its asynchronous form, pornography advances itself through its repeatability, enabling the person using it to do so many times and in a variety of ways, while completely abstracting himself from any real relationship between the persons involved—namely the participants in the pornographic act and the audiences who join them.  Indulgence of the lower appetites becomes sought-after for its own sake, and that pursuit, by its nature, is evil.

Since the real innovation of online pornography is not its accessibility but its interactivity, online pornography substitutes the ephemeral gratification of the concupiscible and emotional appetites for the pursuit of authentic human relationships.  This is a result of concupiscence, which, as Professor McInerny explains, is simply our natural inclination toward sensible goods.  He defines concupiscence as morally neutral, a force that simply moves us toward a good that we might possess.  It “inclines us towards things which are real goods, taken in themselves, but it is up to the joint effort of intellect and will to determine if such goods are real goods for this particular person at this particular time, in these particular circumstances; in other words, it is up to reason to establish their proper moral valuation.” ⁶ The Catechism of the Catholic Church is more pointed in its explanation of concupiscence, stating that it is “the movement of the sensitive appetite contrary to the operation of the human reason . . . [which] stems from the disobedience of the first sin.  It unsettles man’s moral faculties and, without being in itself an offence, inclines man to commit sins.” ⁷  Interactive pornography not only promotes, but actively facilitates, this inclination to sin.  Until the modern age of communicative media, pornography was relatively static, involving no commitment on the part of the audience besides a solitary participation in the sexual desires that were aroused.  Advances in the popular production and consumption of communicative media, however, have made pornography dynamic in the sense that the audience can participate as (invoking a theatrical idea advanced by Bertolt Brecht and Augusto Boal) “spect-actors” rather than spectators.⁸ A sexual act performed on screen is engaged by one or more persons through multiple webcam windows that focus on the parts of the body being manipulated, or on teasing the viewer into active cooperation through the anticipation of the act.  While some of the sites designed for this purpose are free, many require a subscription fee, betraying the thought-out plans of the participating subscriber to engage in a given act over time, allowing himself to cultivate a habit, or “a disposition which allows us to perform the acts associated with it with relative ease”,⁹ of satisfying the sexual urge through autoerotic acts.

While no physical contact is exchanged between the participants, except in those instances where two or more are gathered before the same webcam, implements exist that enable participants to “touch” one another directly via the computer’s USB ports, as participants in mutual sexual acts attach devices to their bodies that enable their “partners” to stimulate them from keyboards and mice scattered at any distance.  Interactive pornography, which used to be limited to the acoustic realm of “telephone sex”, now dominates the visual and tactile realms via cyberspace, engaging most of the senses.  In this way it is easy to substitute virtual reality for reality, for all the elements are in place to make a mediated sexual experience appear to the participants to be a very real encounter between or among them.  Once the edge of virtue has been tipped over into vice, good habits cultivated by good acts turn into bad habits cultivated by bad acts.  D. Q. McInerny cautions against the formation of such bad habits, explaining that if a person “has succeeded over time in establishing the habit of chastity, he would be opening the door to the destruction of that habit if he were to become a regular reader of pornographic literature.” ¹⁰ Not all is lost, however, in the equation.  The same effect can work in the other direction, since a person who, through a succession of bad acts, has engendered bad habits that dominate over right reason, can reclaim virtue through a series of good acts (brought about initially by a great deal of self-restraint).  Because “bad habits are formed and sustained in the same way that good habits are”, Professor McInerny explains, “as soon as a bad habit ceases to be nourished by repeated bad acts it will begin to wither on the vine.” ¹¹ The difference between the good habit and the bad habit in this regard is not one of degree so much as it is one of kind.  As St. Thomas writes, “A habit is said to be good which disposes the possessor of the habit to acts that are consonant with his nature.  A habit is said to be bad, on the other hand, which disposes its possessor to acts which are not consonant with his nature.” ¹²  For this reason, the sexual act engaged in outside its proper context is a form of self-abuse, but the person who has the bad habit will either not recognize this, or will only be able to stop with difficulty when he or she does recognize it.  Thomas adds that “[b]ecause virtuous acts are in harmony with human nature, they are just for that reason rational acts. But vicious acts, since they are contrary to reason, are thus contrary to human nature as well.” ¹³ Assistive technologies (if they are to be used at all) should never replace the human person.

Those who struggle with their proper human rôle in the cosmos do so simply because they do not have a complete understanding of their right place within it and do not, as a result, recognize vice as a disintegrating force in their lives.  The concept that vice entails one’s acting contrary to one’s nature has perhaps been lost after 700 years of Nominalist reaction against universals, and the modernist interpretation of the fundamental option, in which a person’s overall commitment to God is considered stronger than any given act in which that person engages.  Pope John Paul II explains in Veritatis splendor that this attitude “is pushed to the point where a concrete kind of behaviour, even one freely chosen, comes to be considered as a merely physical process, and not according to the criteria proper to a human act.” ¹⁴ As a physical process, the activity is thought not to carry any moral weight, so that any evil that is derived from it is purely a physical evil and not a moral evil, and the soul, consequently, is not in jeopardy.  But Veritatis splendor is emphatic on this point, that any such fundamental option “is revoked when man engages his freedom in conscious decisions to the contrary, with regard to morally grave matter” (emphasis in original).¹⁵ The reason for this, the document explains, is that the separation of one’s commitment to God from concrete acts “means to contradict the substantial integrity or personal unity of the moral agent in his body and in his soul.” ¹⁶  Having jettisoned the arguments of those who would consciously separate human acts from soteriological realities, Veritatis splendor demonstrates that the acting person is responsible for pursuing the dignity and integral vocation for which humanity was created.  As St. Thomas has explained in his treatise on law, the basic precepts of natural law are to pursue the good and avoid evil, and persons who do not do this are guilty of negligence and vincible ignorance.  Bringing people back to the truth for which they were designed, Veritatis splendor adds “Once the moral species of an action prohibited by a universal rule is concretely recognized, the only morally good act is that of obeying the moral law and of refraining from the action which it forbids.” ¹⁷ It is this reality that interpellates participants in interactive pornography, for it calls them, first, to recognize the error and then to follow up that recognition with a determined resolve to orient their acts so that they lose the particular vicious habits that lead to their corruption and to their assisting in the corruption of others.

The difficulty of that determined resolve leads to acceptance of the social conditioning created by various media outlets, in which interactive pornography is deemed a legitimate means of sexual expression by those who engage in it.  Persons who participate in interactive pornography usually do so with full and unblushing consent, preceded by an act of commitment, called assent, on the part of the intellect.  D. Q. McInerny explains that “[t]o consent to something is to commit oneself comprehensively to it through a conscious act of the will . . . [and to] give [oneself] over to it in a spirit of warm totality.” ¹⁸ The reasons for this consent to interactive pornography include the ideas that autoerotism is preferable to frustration; that virtual sex with strangers is safer than real sex with them; that sexual anonymity provides an escape from the consequences of a relationship; that a flesh-and-blood affair with a person other than one’s spouse is worse than a virtual “fling”; that having multiple affairs with online sex partners adds to the pleasure of the sexual activity; and that a lifestyle that is not open to real relationships can thrive on virtual ones.  Present with all of these ideas is a lack of desire for authentic relationships.  Absent in all of them is any realization of the damage that inordinate sexual acts do to the person committing them.  The acting person cultivates the vice of lust when he closes off avenues to authentic sexual expression within the sacrament of marriage.  The corresponding virtue of chastity is thereby diminished, which means that persons involved in interactive cybersex are conditioning themselves to use other persons as objects, either for their own physical gratification or for the sense of power and self-esteem they derive from similarly gratifying others.  In both cases, the sense of the human person as a unity of body and spirit is exchanged for the gratification of the senses or emotions of the person engaged in this act of destruction.

As interactive pornography limits the degree to which the acting person can be a meaningful custodian of his own eyes, its effects are exacerbated by the lust which its users wilfully and wantonly cultivate. Christ’s warning in Matthew 5:28 is well-known:  He says, “But I say to you, that whosoever shall look on a woman to lust after her, hath already committed adultery with her in his heart.”  But it is not necessary to look to Sacred Scripture to teach us this, for reason tells us that an intemperate pursuit of sensual pleasure begins with the eyes, about which Aristotle writes in the opening to his Metaphysics:

All men by nature desire to know.  An indication of this is the delight we take in our senses; for even apart from their usefulness they are loved for themselves; and above all others the sense of sight.  For not only with a view to action, but even when we are not going to do anything, we prefer seeing (one might say) to everything else.  The reason is that this, most of all the senses, makes us know and brings to light many differences between things.¹⁹

Since lust, as we have already described it, is a vice that separates the person from his nature, the use of our sight in ways not conducive to the integrating power of the virtues is abuse of a natural tool.  John Paul II extends this prohibition against lust in his Wednesday audience of October 8, 1980, in his argument that “adultery in the heart is committed not only because man looks in this way at a woman who is not his wife, but precisely because he looks at a woman in this way.  Even if he looked in this way at the woman who is his wife, he could likewise commit adultery in his heart.” ²⁰ Lacking in self-control—the essence of virtue, especially as regards the concupiscible and irascible appetites—the acting person allows reason to be subordinate to desire, and even if he were to avoid the occasion for sin, he might still be frustrated in the flesh or desperate in the spirit, and, either way, give evidence of the fact that he has not attained the virtue of chastity.  Self-control, indeed, is the primary way in which a person can demonstrate sexual responsibility, for an inability to control the self will lead one into various acts of self-abuse when it comes to pass that one cannot control others.  If we are called, therefore, to control ourselves even in the presence of our spouses, then it is even more reasonable to assume that we ought to practise self-control in the presence of strangers, especially at such times as opportunities for illicit gratification of the sense-appetite present themselves most attractively.

That we have the power within ourselves to bring our appetites under the control of our reason is evident in the way in which our appetites interact with our intellects.  St. Thomas writes in the eighth article of the Disputed Questions “that for man to turn away from evil is in a way natural, but to do this promptly and infallibly the habit of virtue is needed.” ²¹ When a person is trying to move toward virtue, he is moving toward a habit that, according to Vincent de Costro Novo (the Dominican who completed Thomas’s responses to the second article of the Disputed Questions), “makes the one having it good and makes his act good with moral goodness”, and he is moving away from the habit of vice, which “is what makes the one having it evil and makes his act evil with moral badness”.²² One grows in virtue in an integrative sense, as all the virtues are connected, but one grows in vice in a disintegrative sense, in that not all of the vices are connected.  “The tragedy of vice”, D. Q. McInerny writes, “is that the vicious person is profoundly disunified, caught up in the constant cacophony and distraction of inner warfare. . . . The division is caused by the fact that, by his vice, he has put himself at enmity with his own nature.  To be vicious is to be irrational, and to be irrational is to betray one’s deepest identity, to undermine one’s very reason for being.” ²³ The cure for the irrational person is a turn toward the good, and this is possible because, according to Thomas in Disputed Questions, the acquired virtues are not taken away by a single vicious act, even though the act of virtue might be.  Our virtuous habits may still be cultivated, though it is increasingly hard for the truly vicious person to pursue the good, since the trends of evil are already so well established.  To this end, Thomas makes a distinction by arguing that virtuous acts not easily done are still in contention with vicious habits “because before acquiring the habit of virtue a man does not do the works of virtue as the virtuous man does, namely, promptly and without doubt and with pleasure and easily.” ²⁴ It is only through repeated practice of good acts that a person will develop corresponding virtues that will evidence themselves in the ease with which other good acts are done.  Once our appetites come under the control of our reason, our fully integrated selves will have greater opportunity to pursue the abundance of goods above the line dividing good and evil, rather than merely skirting the line that separates our salvation from our perdition.

Relegation of others to objects for our own gratification through interactive pornography is an exercise in solipsism, and it prevents us from being able to participate in full communion with others on many seemingly unrelated levels, greatly lessened to us as they are by this burden of solipsism.  That the problematic nature of interactive pornography from a moral perspective does not necessarily present itself to our surrounding culture means that we who know have an obligation to teach others.  As Ralph McInerny (the more famous brother of D. Q. McInerny) explains, however, those who learn the truth about their human nature, even those who rise to prominence in expressing this truth to others and have written, perhaps, several books in the field of temperance, may yet have failings when it comes to applying practically what it is they believe theoretically.  He writes in his twelfth lecture that “[t]he remedy is not more knowledge, since ex hypothesis this agent already has the relevant true practical knowledge.  What is needed is prayer and fasting.” ²⁵ This point supports Thomas, who wrote that “the rebellion against reason by the irascible and concupiscible cannot be wholly removed by virtue; since of their very nature the irascible and concupiscible tend to that which is good according to sense, they sometimes resist reason.  But this can be brought about by the divine power which is even capable of changing natures.” ²⁶ For this, we should remember who we are as persons created in the divine image, with transcendent and eternal destinies, and order our appetites to the true good that our reason enables us to perceive and to which our human nature is ordered.

 Endnotes

1.   Thomas Aquinas, St., Disputed Questions on Virtue, trans. Ralph McInerny (South Bend,

Ind.:  St. Augustine’s Press, 1999), p. 51.

2.   If the right object is not in fact being pursued, one cannot look to intentions or

circumstances to make it right.  Ignoring this, “proportionalists” cultivate moral laxity in

seeking to make the worse appear the better cause.

3.   D. Q. McInerny, A Course in Thomistic Ethics (Elmhurst, Pa.:  Priestly Fraternity of St.

Peter, 1997), p. 205.

4.   Ibid., p. 25.

5.   Ibid., p. 200.

6.   Ibid., p. 39.

7.   Catechism of the Catholic Church, 2nd ed., §2515.

8.   Meg Mumford, Bertolt Brecht (New York:  Taylor & Francis, 2009), p. 176.

9.   D. Q. McInerny, op. cit., p. 150.

10.  Ibid., p. 149.

11.  Ibid.

12.  Ibid., p. 151; et vide Summa Theol. I-II, Q. 49.

13.  Ibid.; et vide Summa Theol. I-II, Q. 71, Art. 2.

14.  John Paul II, Pope, Encyclical letter Veritatis splendor (1993), §65.

15.  Ibid., §67.

16.  Ibid.

17.  Ibid.

18.  D. Q. McInerny, op. cit., p. 59.

19.  Aristotle, Metaphysics, trans. W. D. Ross (1924).

20.  John Paul II, Pope, The Theology of the Body:  Human Love in the Divine Plan (Boston:

Pauline Books, 1997), p. 157.

21.  St. Thomas Aquinas, op. cit., p. 51.

22.  Ibid., p. 13.

23.  D. Q. McInerny, op. cit., p. 202.

24.  St. Thomas Aquinas, op. cit., p. 61.

25.  Ralph McInerny, “Introduction to Moral Philosophy Course Notes” (International

Catholic University, 1995) http://home.comcast.net/~icuweb/c00401.htm.

26.  St. Thomas Aquinas, op. cit., p. 28.

Anthony St. Louis-Sanchez is an auditor and assessor for the Diocesan Tribunal of Colorado Springs.  He is currently studying canon law through St. Paul University, Ottawa.  Anthony received his BA with a major in philosophy, magna cum laude, from St. Mary’s University, Minnesota, and his MA in theology with a concentration in dogmatic theology, summa cum laude, from Holy Apostles College and Seminary, Connecticut.  Anthony lives in Colorado Springs, Colorado with his lovely wife, Maria, and their two daughters.

The Sexual Abuse Crisis and the Application of Penal Law in the Church

The Catholic Church has been shaken by the sexual abuse crisis of recent years.  Many voices in society are calling for reform, transparency, and justice.  The deficiencies and sins of the Church have been put on public display, and the bishops are on high alert.  Any credible allegation of sexual abuse of a minor by a priest must be dealt with swiftly and decisively.  If a bishop fails to act quickly, with full transparency to civil authorities, the financial stability of his diocese may be at risk and the bishop himself may be subject to criminal prosecution.[i]  As of March 2012, eight archdioceses or dioceses have filed for bankruptcy because of large settlements awarded to abuse victims.[ii]  Others are forced to close churches and combine parishes.[iii]  Certainly, victims of sexual abuse have a right to justice and fair settlements, especially when the negligence of church officials was a factor in their abuse.[iv]  And without a doubt, the common good is at grave risk when pedophile priests are allowed to prey on victims.

In order to protect the common good, the bishops must utilize the full force of the law.  In fact, the protection of the common good is one of the main functions of law.  Unfortunately, some bishops are still failing to use all of the means available to them.  Specifically, some bishops are failing to use the laws of the Catholic Church to help restore and protect the common good.  For many years bishops have neglected using the penal precepts of the Code of Canon Law to coerce offenders.[v]  This situation may be due to several factors.  Prominent among them is the fact that in canon law the preference is to use canonical penalties as a last resort.  Canon 1341 of the Code of Canon Law states:

An ordinary is to take care to initiate a judicial or administrative process to impose or declare penalties only after he has ascertained that fraternal correction or rebuke or other means of pastoral solicitude cannot sufficiently repair the scandal, restore justice, reform the offender.[vi]

Apparently, some bishops see in this a justification for relying solely on civil means when clergy are guilty of sexual abuse of a minor.  In fact, it might seem that if the civil government imposes a penalty upon a cleric, then the scandal has been repaired and justice restored.  Moreover, a bishop can effectively remove the priest from ministry, permanently, without having to initiate any canonical process.  One might presume that once civil penalties have been imposed and the cleric has been put on permanent administrative leave, the Church has nothing left to accomplish by initiating an ecclesiastical penal process.  This paper challenges this presumption through a survey of the most recent developments of canon law and argues that the faithful implementation of canon law is required to protect the common good.

Recent Developments

In the not so distant past, pedophilia was treated much differently than it is today.  This was true of how the Church, as well as society in general, approached pedophilia.  At first, pedophilia was seen under the auspice of sin.  According to this view, a priest who abused a minor needed to repent of his sin and reform his life.  Bishops saw the matter in the same way.[vii]  However, in the twentieth century it began to dawn on society that pedophilia was more complex than a mere sinful desire and action.  With the rise of the psychological sciences, the common wisdom was that pedophilia could be cured through therapy and other psychological treatments.[viii]  Bishops availed themselves of these remedies as a way of correcting abusive priests.[ix]  As soon as the psychological expert reported to the bishop that the priest was no longer a danger and could return to ministry, they did, in fact, return the priests to active ministry.  Unfortunately, these psychological means proved inadequate and dangerous to the common good.  After the widespread failure of psychological means to cure pedophilia, it became clear that pedophilia required penal measures to coerce offenders and protect the common good.[x]

Despite the harsh criticism of recent years, the bishops in the United States were forerunners in enacting reforms of ecclesiastical law to help protect the common good.  In the Code of Canon Law, which was promulgated in 1983 as the universal law of the Roman Catholic Church, the crime of sexual abuse of a minor only applied if the minor was not yet sixteen years old at the time of the abuse.[xi]  Moreover, the statute of limitations for such a crime was only five years.[xii]  This meant that if a priest abused a sixteen year old, or if the abuse happened more than five years in the past, the priest could not be punished for sexual abuse of a minor, according to Church law.  It was the bishops of the U.S. who first raised an objection to these low standards.  In November of 1993, ten years after the Code of Canon Law became universal law, the bishops of the U.S. wrote to Rome and requested that the law in the U.S. be changed.  Rome responded favorably, and in April of 1994 the law in the United States was updated.[xiii]  Now, a minor was considered to be anyone under the age of eighteen—instead of sixteen—and the statute of limitations was changed to ten years, but the clock only started ticking once the minor turned eighteen.  Therefore, the statute of limitations would not expire until the victim turned twenty-eight.

And so, the bishops in the United States made an important step forward in 1994 towards legal reform to better protect the common good.  However, this new law was only operative in the U.S.  But with the increasing numbers of alleged abuses, it became clear that further reform was needed for the universal Church.  In 2001, Pope John Paul II issued an important motu proprio, Sacramentorum Sanctitatis Tutela (henceforth called the SST document) which defined sexual abuse of a minor to be a “more grave” crime, in the Church.[xiv]  The effects of these new norms extended the age of minority to those under eighteen, and the statute of limitations was extended to ten years.[xv]  These were the same changes which the U.S. bishops enacted seven years prior.  But now, the SST document made this the new law for the universal Church.  The SST document also reserved the crime of sexual abuse of a minor to the Congregation for the Doctrine of the Faith.  This meant that the local bishops had to send these abuse cases to Rome; they could no longer be handled independently by the local church.  This indicated the seriousness with which Rome considered these abuse cases.  Moreover, even though the statute of limitations was only ten years, the Congregation for the Doctrine of the Faith has the power to dispense entirely from any statute of limitations.

In 2002, in the heat of the sexual abuse crisis in the United States, the U.S. bishops issued the “Dallas Charter” in which they established particular norms and publicly apologized.  The Charter states:

As bishops, we acknowledge our mistakes and our role in that suffering, and we apologize and take responsibility for too often failing victims and our people in the past.  We also take responsibility for dealing with this problem strongly, consistently, and effectively in the future.[xvi]

The seventeen articles of the charter detail responsible steps that dioceses will take in the future for the protection of the common good.  The Charter commits the bishops of the U.S. to a policy of “transparency and openness…[and] vigilance.”^[xvii]  The Charter also mandates, “that even for a single act of sexual abuse of a minor…the offending priest or deacon will be permanently removed from ministry.”[xviii]  Even though this zero tolerance policy sounds good for the protection of the common good, it has been criticized because, “After a long period of almost totally ignoring canonical sanctions, they have now determined to impose in every case the most serious sanction foreseen, removal from ministry.”[xix]  In fact, the U.S. bishops are accomplishing this removal from ministry without utilizing the judicial or administrative penal processes of the Church.  Boccafola states:

In the last few decades, especially in the United States, a new phenomenon seems to have emerged, that of a priest who has no ministerial assignment…the obex preventing the priest from exercising ministry is a prohibition on the part of his bishop or superior, and such a prohibition is not characterized or recognized as a penalty or punishment.[xx]

In canon law, the most severe punishment for a cleric is dismissal from the clerical state, which cannot be imposed automatically.[xxi]  Admittedly, the Dallas Charter does not automatically dismiss guilty clerics from the clerical state, but permanent removal from ministry is functionally equivalent to dismissal from the clerical state.  Therefore, even though the Dallas Charter takes a firm stand against sexual abuse of a minor, this norm seem to be contrary to the Church’s own law.  And so, unlike the norms of the SST document which develop the law in accordance with canonical principles, the Dallas Charter, in some ways, undermines the principles of canon law.

Even though the abuse crisis first came into widespread public view in the United States, it was not confined to the U.S.  In the years following 2002, the crisis spread throughout the Church.[xxii]  In a climate of increasing pressure and calls for further reform, Pope Benedict XVI issued a revised version of the SST document in May of 2010.[xxiii]  This revised document implemented many improvements in the universal law of the Church concerning sexual abuse of a minor.  The statute of limitations was extended to twenty years, notwithstanding the right of the Congregation for the Doctrine of the Faith to eliminate all statutes of limitations.[xxiv]  Also, according to the revised SST document, a person who is over the age of eighteen but who is also developmentally disabled is considered to be a minor if sexually abused.[xxv]  Moreover, possession of child pornography has been included as one of the “more grave” crimes.[xxvi]  With these changes, the Church is sending a clear message: sexual abuse of a minor, in any form, will not be tolerated.

The most recent development of law has not yet come to light.  Rome is currently preparing a complete revision of the penal laws of the Church, which constitutes book VI of the Code of Canon Law.  A small group of officials have been working on this revision.  In September of 2011, a first draft of the revised law was sent out to the Faculties of Canon Law in universities around the world.  The professors of canon law at these universities have reviewed the draft and sent their comments back to Rome.  It is unclear when, exactly, this new law will be promulgated and take effect, or if there will be a further draft before the law is finally promulgated.

The motive behind the new law is precisely to get bishops to use the penal laws of the Church.  The introduction to the draft states:

In truth, swift changes in society and in human behavior seem to require an appropriate recalibration of the current penal norms in the Church.

…[Bishops] have used the canonical penal system too sparingly in exercising their responsibility of governance, sadly not because the faithful are substantially keeping the prescriptions of the law, but rather for two fundamental reasons: firstly, because of an erroneous way of understanding the role of the penal sanctions in the Church, as if it were opposed to the prevailing needs of charity; secondly—this also must be admitted—because of some defects in the current canonical penal system.

The revision foreshadowed therefore tries to stimulate ecclesiastical authorities so that they make use of the penal discipline as often as it seems opportune.[xxvii]

It should be noted that the scope of this revision is much larger than the fine tuning of the law which we have already seen in the SST document.  The hope is that the whole system of penal law in the Church will become more accessible and useful in this revision.  Clearly, Rome sees a need for bishops to use penal law more than it is currently used.

The Common Good

And so, from the preceding historical survey, we can see a divergent trend between the development of penal law in the Church and the reaction of some bishops in the face of increasing societal pressure.  On the one hand, the Church has been revising and promulgating laws to better protect the common good.  On the other hand, some bishops, including many in the U.S., have reacted strongly to societal pressure.  This reaction includes a heavy reliance upon the civil authorities to punish the offender, coupled with an automatic permanent removal from ministry.  Due to the combination of these factors—the civil punishment and permanent administrative leave—there seems to be little reason to make use of the canonical system of the Church.  This raises some important questions.  Is there any need for the imposition of a canonical penalty if the offender is justly punished by the civil authorities and permanently removed from ministry?  In other words, is there some kind of ecclesiastical common good which the civil authorities are unable to protect and restore by imposing punishments of the civil government?  Moreover, does the imposition of canonical penalties—including, if it is warranted, dismissal from the clerical state—somehow restore the common good better than placing the cleric on permanent administrative leave?

In order to approach an answer to these questions, we must note that it is precisely for the protection of the common good that the Church is equipped with her own Code of Canon Law.  St. Thomas Aquinas states that “Law is nothing else than an ordinance of reason for the common good, promulgated by him who has care of the community.”[xxviii]  And so, the protection of the common good is essential to law.  The reforms in the law, which we have already seen—whether particular norms for the U.S. or those in the SST document—, were specifically enacted so that they could respond to the current situation facing the Church, and specifically to protect and restore the common good.  In fact, the Church began developing her own laws even from her birth in the apostolic age.  Therefore, there seems to be some kind of genuine ecclesiastical common good which civil laws do not protect or restore.  Otherwise, we would expect the Church to defer to civil legislation, where such legislation exists.[xxix]

In order to understand the nature of this ecclesiastical common good, we need to better understand, in general, the idea of the common good.  The common good can be defined as “the sum total of the conditions of social life enabling groups and individuals to realize their perfection more fully and readily.”[xxx]  Central to this definition of the common good is the notion of perfection.  Perfection is an essential aspect of nature, because perfection is always the perfection of nature.^[xxxi]  For human nature, knowing and loving God is the ultimate perfection.^[xxxii]  This perfection of human nature is not a perfection specific only to Christians or Catholics because this telos is inscribed in the very nature of the human person.  Therefore, God is the perfection of every human person.  However, it is obvious that the perfection of the human person is not possible in this life, but can only be achieved through the beatific vision.

This understanding of human nature and the perfection of human nature is alien to the secular society in which we live.  And so, the laws of society are designed only to promote the perfection attainable in this life.  This means that the conditions of social life which should enable the human person to reach his or her ultimate perfection are beyond the protective scope of the civil laws.  The civil laws are only concerned with protecting the common civic good, which could be defined as the conditions of social life enabling groups and individuals to realize the perfection attainable in this life more fully and readily.  And so, civil laws fall short of protecting the true common good, namely, that common good which enables groups and individuals to attain the ultimate perfection of the human person, i.e., eternal life with God.

In order to attain our ultimate perfection, i.e., the beatific vision, we need the Church.  Through baptism one is incorporated into the Church.[xxxiii]  And thus, through baptism we are united to the body of Christ in a unique way.  This unique unitive principle is called the communion—communio—of the Church.  Communio is that which binds us together in Christ and forms a special supernatural bond common to all believers.  The communio of the Church is not something extrinsic to our ultimate perfection, but essential to it.  The close connection between communio and our ultimate perfection is expressed in the maxim, “Outside of the Church there is no salvation.”[xxxiv]  And so, the true common good is that communio which enables the person to achieve his or her ultimate perfection more readily.

Unfortunately, when crimes are committed within the Church itself, the very fabric of communio is harmed.  By handing offenders over to the civil authorities without taking any canonical action, despite the fact that they are permanently removed from ministry, the bishops are failing to protect and restore the communio of the Church.  Therefore, “While letting the state courts make the appropriate trials and decision in criminal cases of antisocial sexual behavior, the Church needs to intervene in due course to apply the canonical sanctions.”[xxxv]  This necessity is based on several factors.  First of all, the faithful need to be assured that the Church is the community in which they can safely pursue their ultimate perfection.  This reassurance cannot be accomplished by the imposition of civil penalties.  Civil penalties reassure people that civil society is a safe environment to pursue the happiness attainable in this life.  Therefore, justice demands that the penalties of the Church be utilized.

Moreover, when priests are retained in the clerical state but without any ministerial duties, the very structure of the ecclesiastical community is disorganized.  Dismissal from the clerical state is a means of restoring ecclesiastical order.  On the other hand, sometimes dismissal from the clerical state is not appropriate or justified.  We must remember that the three purposes of penal law are: to repair the scandal, to restore justice, and to reform the offender.[xxxvi]  If the cleric is able to be reformed by other penal remedies and the cleric wishes to remain in the clerical state, then dismissal might not be the best course of action.  This does not mean, however, that the cleric should have any contact with children if he is guilty of sexual abuse of a minor.  But, in fact, a cleric pursuing a life of prayer and penance could be very beneficial to ecclesiastical communio.

In deciding which penal sanctions to apply in a given case requires bishops to have a keen pastoral sense.  In fact, bishops can demonstrate their pastoral care for the wellbeing of the community and the offender by utilizing the penal laws of the Church.[xxxvii]  Too often, law and charity are seen as being mutually exclusive.  It is assumed that ministry in the Church requires a certain pastoral approach which is antithetical to the strict application of law.  But this is a fundamental misunderstanding.  Law and pastoral charity go together.  The final canon of the Code of Canon Law, which in many ways sums up the whole Code, states, “the salvation of souls…must always be the supreme law in the Church.”^[xxxviii]  And so, the application of law and pastoral charity are two sides of the same coin.  Perhaps the revision of book VI of the Code of Canon Law will enable bishops to rediscover this truth.

Bibliography

Aquinas, Thomas. Summa Theologica of St. Thomas Aquinas. Second revised edition.  1920.  http://www.newadvent.org/summa/

Boccafola, Kenneth, E. “The Special Penal Norms of the United States and Their Application,” in The Penal Process and the Protection of Rights in Canon Law, ed. Patricia M. Dugan. Montreal: Wilson & Lafleur, 2005.

Caparros, Ernest. “Criminal Law Protection of the Human Rights in Civil and Religious Societies,” in The Penal Process and the Protection of Rights in Canon Law, ed. Patricia M. Dugan. Montreal: Wilson & Lafleur, 2005.

Cessario, Romanus, O.P. Introduction to Moral Theology.  Washington D.C.: CUA Press, 2001.

Code of Canon Law: Latin-English Edition.  Trans. by the Canon Law Society of America.  Washington, DC. 1998.

Denzinger, Henry. The Sources of Catholic Dogma. Trans. Roy J. Deferrari. Fitzwilliam: Loreto, 1955.

Flannery, A. ed., Vatican Council II: Conciliar and Post-Conciliar Documents, Vol. 1, revised ed. Collegeville: Liturgical Press, 1992.

Woestman, William H.  Ecclesiastical Sanctions and the Penal Process.  Ottawa, Faculty of Canon Law, second edition, revised and updated, Saint Paul University, 2003.

Andrew Steele is currently pursuing an MA in Theology, with a concentration in Sacred Scripture, at Holy Apostles College & Seminary.  He received his BA in Philosophy and Theology from Ave Maria University in Florida.  He is currently the Director of Religious Education at the Quasi-Parish of Ave Maria Oratory, but in Summer 2012, will become the new Director of Faith Formation at St. Mark Catholic Church in Shoreline, WA.  He is married to his beautiful wife, Melissa, who recently gave birth to their first son, Michael.

The Problem With Capital Punishment:

 A Thomistic Solution of a Hobbesian Grammar

Throughout my years as a police officer, the notion of capital punishment was an easy one to grasp and side with.  It seemed only natural to me that if a person made a premeditated decision to take the life of another person, they should suffer the same fate as their victim.  For although my mind had not yet experienced any concentrated studies in ethics or philosophical argumentation and reasoning, what I believed to be true, conformed to my experience of justice, as I, a common man, saw it, with the additional insight of being a street cop.  I based nearly all issues of rights, freedom, and justice, not as transcendent notions belonging to the realm of universality, originating from the divine, but simply as claims and decisions rooted in the heart and minds of men, and even then, only discretionary, rather than obligatory and intrinsic.  Needless to say, the ethical problem that surrounds the practice of capital punishment for most people who oppose it, is whether a person who has taken the life of another person (excluding the case of justifiable self-defense, or further, a just-war theory), should have his life taken away as well, as perfect retribution.  Although an appeal to Christian doctrine would clearly state the negative, how can capital punishment be proved to be immoral and unjust, philosophically?  Upon exposing the language of Thomas Hobbes, juxtaposed with the philosophical teachings of St. Thomas Aquinas, I will begin this study by examining the question of what constitutes a right, thus inserting the appropriate definition to the problems of (1) whether a person has a right to the perpetuation of their life, (2) whether this right originates from any law of nature, and (3) whether this right can ever be withdrawn by the sovereign State, in the form of capital punishment, as a legitimate act of justice.  It will become clear, that aside from Christian moral teaching, one can conclude capital punishment to be unjustifiable within the context of true justice, and therefore untenable as a moral act of justification.

Should the punishment mirror exactly that of the crime?  Should all men, whether Christian or Jew, follow without question, the Mosaic law which purports that “Whoever strikes a man so that he dies shall be put to death”[1], and further, that one should “give life for life, eye for eye, tooth for tooth”[2], “as he has done it shall be done to him”?[3]  Does such reasoning truly conform and hold up to that of Christian philosophical scrutiny?  Upon a superficial glance, it would seem that a Christian would continue to hold capital punishment as a legitimate form of punishment due in response to the crime and sin of murder.  For does not the Old Testament remain within the canons of The Holy Bible, and therefore binding to all Christians?  The simple answer is yes, but within a proper context.  For any theologian will admit that the Old Testament could no more be removed from the Bible, than the past can be erased from human history.  Just as the past must be remembered in order to better understand the present and best prepare for the future, so too must a Christian hold on to the precepts of the Old Testament, in order to better understand the implications of Christ’s fulfillment in the New Testament, and to live a holy and virtuous life in the present and for the future.  Although it may seem somewhat irrelevant, philosophically, to mention the Bible in this way, it is not.  For one, especially a Christian, must understand why (setting aside divine revelation), he must not support capital punishment as a justifiable act of retribution for murder.

Let us then take up the matter of a right.  In his Leviathan, Thomas Hobbes provides his very basic premise of what a right is – that which “consisteth in liberty to do or to forbear”.[4]  This would seem, then, that a right is a matter of discretion, originating from the existence of freedom that resides in the individual.  By Hobbes’s definition, for a man to lay claim to having a particular right, is to allow for such man to choose to do anything he wishes to do, based on the premise of his freedom.  However, within man’s freedom to claim something as a right for himself, should there not exist responsibility to make a wise choice, not only for the good of the self, but also for the good of others?  Does Hobbes condone actions which only seek the good of the self, or does his definition of right actually contain more than what he stated above?  The answer to all these questions is “yes”.  For whenever something powerful is given to a man, it is commonly held that with such power, also comes great responsibility.  This responsibility cannot be said to be solely focused on the self, for if this were true, why would there be any need to have posited any “great responsibility” in the first place?  Therefore, there must be a greater reasoning being perpetuated in such axiom.  It begs the questions then: what is this thing which “great responsibility” leads man to?

St. Thomas Aquinas once asked the question, what requires right as its object?  He used the example of a man’s work as being “related to some other by way of some kind of equality, for instance the payment of the wage due for a service rendered.”[5]  Notice in this example, that a man entered into a covenant with another, to perform some work, and in return for this work, the man would receive a wage that is agreed upon.  So, what is demanded by both parties insofar as their rights are concerned?  What is it that both require in order for their rights to remain undefiled?  Justice; that is, for the man to be just in his promise of work, in addition to the employer being just in his promise to pay the man his wages.  Justice, then, remains at the heart of ensuring the non-violation of a person’s rights, and is thus concluded to be the very thing equal to that of “great responsibility”.  Taking further notice at this, it becomes clearer that although one individual’s rights are certainly able to be spoken of, it would seem impossible, given the state of man’s reality as living among other people, and not living in total seclusion, that not only should the rights of one person remain justly respected, but also that of every other person as well.  And so, the issue of rights cannot be spoken of, or even judged, without taking everyone’s rights into consideration as well.

But are rights simply a convention, created by man to help perpetuate his desires, or is it something outside of man?  With Hobbes, the answer is not explicit, but is implicit within his definition of the right of nature.  Hobbes writes: “The right of nature, which writers commonly call jus naturale, is the liberty each man hath, to use his own power, as he will himself, for the preservation of his own nature; that is to say, of his own life; and consequently, of doing any thing, which in his own judgment, and reason, he shall conceive to be the aptest means thereunto.”[6]  What can be gleaned from Hobbes’ doctrine on the right of nature in regards to rights themselves, is that what properly belongs to a right, is its fittingness of the subject who is claiming the right, to preserve his own nature.  That is to say, a person has a right inherent within himself to choose a course of action that would further perpetuate his life.  To reiterate then, is this right conventional, or does it stem from the natural world?  Hobbes takes up this question and states that a right exists within the law of nature; and for him, the law of nature “is a precept, or general rule, found out by reason, by which a man is forbidden to do, that, which is destructive of his life, or taketh away the means of preserving the same.”[7]  We see here that, according to Hobbes, man’s right to life stems from a state of nature that forbids him from doing anything that allows for his own destruction.  And further, this perpetuation of one’s life exists in the very fabric of his existence as a human man.  Jacques Maritain supported this claim when he stated:  “. . .man possesses ends which necessarily correspond to his essential constitution and which are the same for all. . .but since man is endowed with intelligence and determines his own ends, it is up to him to put himself in tune with the ends necessarily demanded by nature.”[8]   Therefore, it can be concluded that a right is indeed found as something handed down to man from nature, and is thus not conventional.  And so, in keeping with the thesis of this study, the next question which must be answered, is what right does the State have in its ability to protect the lives of its people?  How far can the State go in its act toward justice, in order to ensure the proper securing of people’s lives?

On the face of the issue, the situation would seem to suggest the presence of the principle of double effect.[9]  For when the common explanation is put forth, the defense for capital punishment is such that it is believed that the State, in order to defend the lives of the people who are affected by the heinous crime(s) of the offender, takes the life of the offender to ensure this peace.  And so, by their appeal to the principle of double effect, they essentially argue that capital punishment is justified by the belief that the State is merely acting in self-defense, in place of its people.  But this argument is untenable, for the principle of double effect only becomes a factor when there is imminent danger to the life of a person.  Presupposed within the principle of double effect is that the victim, realizing he only has a split second to decide whether he should allow an armed attacker to actually attack him, does in fact move toward an action against the offender to preserve his life; and in this move, he seeks not the killing of the person, but only the preventing of the offender from doing physical harm to him.  An altercation of this type, resulting in any subsequent killing of the other person, would merely be accidental to the motion of the victim in preserving his own life.  Again, when juxtaposed with that of the actions of a State to inflict capital punishment, what imminent danger exists to the lives of people in society, given that the offender is imprisoned in a state or federal penitentiary?

In order to place the matter into practical experience, I shall take an example of a realistically-based, though fictional situation of a hardcore gang member, Karl, who has been told by his long-time friend and fellow gang-member, Martin, that Karl’s girlfriend, Sonia, has  been cheating on him with another man whom Karl does not know.  Martin tells Karl that he does not know this man, but was told by another friend, Jake (unknown by Karl), that the man’s name is Hector, and that Jake knew where Hector lived.  Karl, who is an ex-con with a “rap sheet” several pages long, trusts Martin completely, and requests Hector’s address.  Karl confronts Sonia, who ends up admitting her affair with another man, but says it was nothing serious, and refuses to give up any information about the man, claiming she had already ended the affair.  Karl leaves Sonia’s presence, and trusting the information Martin provided him, goes to Hector’s address and seeing that a car is in the driveway, believes Hector to be home.  He breaks into the house via an unlocked back door, hears a television set on, and proceeds inside to the living room.  Meanwhile, after having seen Karl enter the house, a neighbor calls 911 to report a possible burglary in progress.  Karl, unaware of the neighbor having seen him, continues to look for Hector.  He approaches Hector from behind, who is sitting in a reclining chair facing the television.  Now Karl, not intending to kill Hector, but to severely beat him up in order to convince him to never see Sonia again, pushes Hector off the chair, and after Hector falls to the floor, he sees Hector has been stabbed with a kitchen knife, which is still stuck in his chest.  Hector is dead.  Karl is stunned, but in a frenzy, makes his way out of the house and begins to walk to his vehicle.  Just before he makes it to the vehicle, two police officers arrive on scene, and after a brief foot pursuit, they take Karl into custody.  After discovering the dead body of Hector, they charge Karl with murder.

The part of the story which no one knows, except for Martin, is that Martin, after taking a knife from Karl’s kitchen, and while wearing gloves, went to Hector’s house and stabbed him with Karl’s knife.  Martin and Sonia fabricated the story in order to set up a situation where Karl would more than likely be framed for the murder and no longer be in the picture; for it was Martin and Sonia who were having the affair.  Nevertheless, due to incomplete investigative work on the part of the detectives, blamed mainly on their already high case load, the case closes based on the fact of the knife (which had Karl’s fingerprints) and Karl’s presence.  Later, the jury too finds Karl guilty and is sent to prison, being placed on “death row”.  All the officers, detectives, and jurors, believed they were doing “God’s work” by sending a hardcore gang member to the electric chair.  Karl was later executed, thus allowing all involved law enforcement, and those who sided with them, to cheer for yet another victory in their fight against crime.  This was my perception of truth and justice, and one major reason why a great number of people in society side with capital punishment – it seeks to rid society of those who cannot live peacefully in it.  As Walter Berns stated:

Capital punishment. . .serves to remind us of the majesty of the moral order that is embodied in our law and of the terrible consequences of its breach. . .The criminal law must be made. . .awe-inspiring, or commanding ‘profound respect or reverential fear.’  It must remind us of the moral order by which alone we can live as human beings, and in our day the only punishment that can do this is capital punishment.[10]

But is this truly justice?  Can it be said that although a man may have had intent to commit injury to another, that just because the circumstances seemed to fit, that such man’s life should be taken away?  An appeal to reason would answer in the negative.

What then is the true goal of capital punishment?  It would seem from the arguments presented thus far, that its goal is not essentially the preservation of life, but rather, the taking of life; for it can easily be known through reason, that the State does not truly have any ethical grounding in the practice of capital punishment.  What must be made clear, is the distinction of under what circumstances does the State have a right, ethically, to withdraw the rights of another?  Can there ever be a time when the State has the right to withdraw one’s own right to life?  One must consider that the right to life is not an issue like that of a person’s right to protest.  For although it is conceded that when a peaceful protest turns into a protest that incites riot and chaos, then such persons give up their right to protest, by virtue of their actions which do not conform to a proper social ethic.  The State would then be just in withdrawing such right of a person to protest.  The key difference between the State’s intervention in withdrawing one’s right’s is from whom does such right originate?  That is, in regards to this example of the right to protest – is this a right that is necessarily instrinsic to human nature, or is it something that is established within a social contract between the people and the State?  It would seem the latter, for protests seem to have political issues as its object, rather than anything intrinsic to the person.  However, when the matter is that of life itself, who is the originator of one’s right to life?  Who created his life?  To use philosophical vernacular, the First Cause.  To use Christian terminology, God.  Therefore, even without reference to Christian morality, it seems clear that the State does not act justly within any level of ethical behavior, by inflicting capital punishment, by the simple fact that it is not the State who has originated or agreed to the initial act of life of any particular person.  The only “person” who has such right, can only be concluded to be God, or the one known as First Cause.

Bibliography

Aquinas, St. Thomas. Summa Theologica. Notre Dame, IN: Ave Maria Press, Inc., 1981.

Berns, Walter. For Capital Punishment. New York: Basic Books, Inc., 1979.

Catechism of the Catholic Church. Vol. 2nd. Citta del Vaticano: Libreria Editrice Vaticana, 1997.

Hobbes, Thomas. Leviathan. Edited by John Gaskin. New York: Oxford University Press Inc., 1998.

Maritain, Jacques. Man and the State. Washington, D.C.: Catholic University of America Press, 1998.

Stanford Encyclopedia of Philosophy. Doctrine of Double Effect. June 29, 2009. http://plato.stanford.edu/entries/double-effect/ (accessed May 4, 2010).

The Holy Bible. Revised Standard Version. Second Catholic Edition. San Francisco: Nelson Publishing for Ignatius Press, 2006.

Endnotes

 Contraception and Public Policy

In what many regard as the most prophetic work of the Twentieth Century, Brave New World, Aldous Huxley presents a culture in which fertility is seen as a nuisance and women carry contraceptives with them everywhere they go on their “Maltusian Belts.”  Perhaps the last major obstacle to making this prediction a reality is the Catholic Church.  That is why the recent HHS mandate that requires religious institutions to subsidize free contraceptives for their employees is seen by many as a shot over the bow of the Bark of Peter in the United States.  Not surprisingly, one Catholic GOP candidate for President has been peppered with questions related to the mandate and birth control in general.  He has attempted to address the immorality as well as the societal consequences, but his support of public policy has been inconsistent with his personal views.  This is especially true with his support of the Title X program that provides access to contraceptive services, supplies and information.  Clearly he feels the pressure of speaking to a society that has become dependent upon the widespread availability of contraception.  It seems that the only recourse is to fall back on the safety net of “I am personally opposed, but I can’t impose my beliefs on others.”  But given our contraceptive culture, is there a realistic public policy that respects both the common good and the natural law?

To begin, one might simply say that the government ought to give the people what they want.  This is a foundational principle of a government “for the people, by the people.”  Those that do not want to use contraception have a right not to make use of the service, but that should not take away the rights of those who do.  Although this is the prevailing mentality, it rests upon two erroneous assumptions.

Running from the Natural Law?

The first is a misunderstanding of self-government.  This does not mean majority rules and whatever a majority wants they should get.  This eventually leads to the type of soft-despotism that Tocqueville thought a very real possibility in the democracy of the United States.  Instead, because the right to self-government proceeds from the Natural Law, the exercise of that right must be in accord with Natural Law.  If Natural Law is sufficiently valid to give this basic right to the people then it must be valid to impose its precepts on this same right.[1]  Whatever rights the people want to exercise must be in accord with Natural Law.  You cannot run away from the natural law as any honest moral relativist quickly finds out.  To the matter at hand, the immorality of artificial contraception is not simply a religious or personal belief but something that can be arrived at through the application of the Natural Law.

Despite the fact that the Founding Fathers framed this country on a Judeo-Christian understanding of Natural Law, very few Americans today actually know what the Natural Law is and how to apply it.  Most assume it has something to do with what naturally occurs rather than something that is linked to man’s nature or essence.  Therefore it is instructive to discuss precisely why contraception violates the natural law, if for no other reason than to put away the myth that it is merely a regurgitation of outdated religious dogma.

In examining human nature, one finds that man has a natural inclination to the good.  In particular, there are four intrinsic goods in which man is naturally inclined.  First, all men have an inclination to conserve their being.  From this inclination every man naturally does those things which preserve and enhance his life and avoid those things which would be harmful to it.  Second, man possesses the natural inclination to marriage and procreation (including the raising and education of children).  Third, because man is a rational creature he has a natural inclination to know the truth, especially about God and finally to live in society.  Whatever pertains to each of these inclinations belongs to the natural law.[2]  In other words, whatever leads to true human thriving ought to be promoted and whatever is contrary to one of these goods is wrong and ought to be avoided.  It is also important to note that something is wrong not simply because God said so, but because ultimately because it is harmful to us.  That is why Aquinas insisted that we offend God only by acting contrary to our own good.[3]

Notice further that in the list of intrinsic goods, marriage and procreation appear as a single good.  That is because they are intrinsically linked so that anything that harms either of the two aspects harms both.  Therefore, contraception is intrinsically wrong because it harms the good of marriage and procreation.

Many question how these two aspects constitute a single, inseparable good.  If we understand marriage in the traditional sense to mean the one-flesh, communion of persons in which the spouses unite on all levels of their personhood (body and soul) and we examine the conjugal act on a biological level we can illuminate the inseparability principle.  Professor Germain Grisez articulates this well when he carefully explains this based on the following principle:

“Though a male and female are complete individuals with respect to other functions — for example, nutrition, sensation, and locomotion — with respect to reproduction they are only potential parts of a mated pair, which is the complete organism capable of reproducing sexually. Even if the mated pair is sterile, intercourse, provided it is the reproductive behavior characteristic of the species, makes the copulating male and female one organism.”[4]

While it was claimed above that the laws of nature are not the same as the Natural Law, these laws can serve as a reliable guide in discovering the good.  Because nature is intelligible, to act in accord with nature is to act in accord with reason and therefore to act morally.   Conversely we can say that which is not natural is not in accord with reason and therefore is immoral.  One can readily see based on this principle why there is an insistence against “artificial” methods of birth control and something like Natural Family Planning is in accord with the Natural Law.  It is not because they are artificial per se but because they are unnatural.  In other words they violate human nature.

“I Want My Rights”

A second confusion arises with respect to whether there is truly a right to contraception.  There is a necessary distinction to be made between what are commonly referred to as “strong” and “weak” rights.  A “strong” right is always connected to a true perfective good and cannot be derived from a broader right.   Meanwhile “weak” rights flow from others’ duty of non-interference.  This distinction is important because many people confuse the fact that if there is a right of noninterference, then this gives them a right to a particular activity.  True rights never proceed from another’s duty not to interfere.  This unfortunately is a source of confusion even in our current judicial climate, especially in the relationship between Roe vs. Wade’s right to privacy and Casey vs. Planned Parenthood’s declaration that a woman has a right to abortion.  In applying this to the question of artificial contraception one can say that although there may be a right to non-interference because artificial contraception violates the natural law there is no right to it.

The Policy

Based upon this foundation, one might conclude that artificial contraception should be outlawed immediately.  One can hardly begin to imagine the political upheaval if such a policy was put in place.  That is why St. Thomas Aquinas thought that not all vice ought to be outlawed.  Instead he thought only “the more grievous vices from which it is possible for the majority to abstain; and chiefly those that are to the hurt of others…”[5] should be outlawed.  In essence the Angelic Doctor is saying that when a law prescribes acts that are far beyond the virtue of the average person in society then there ought to be no laws against it.  One of the reasons for this is that the law may become a pathway to further vice.  For example, suppose you outlaw contraception and not everyone has the level of virtue to follow the law.  Now you can create a situation where a black market arises and further, more serious crime occurs.

This does not mean that contraception is a necessary evil and that nothing can be done.  Classically understood, a good government is one that helps make the people morally good.  This is especially true of a democracy which depends on a “moral and religious people” to survive as John Adams said.  While laws may not seek to outlaw all vices, they certainly should not promote them.  Therefore, governmental policies such as Title X that actually supply and pay for contraception should not be in place.  A policy such as this would also respect the fact that most people view contraception as “a private matter,” although they may not be happy once they got their wish. This step in the process may not be a hard sell, but there would be an aspect of the policy that would literally be a very difficult pill for many to swallow.

The Bitter Pill

Unfortunately one of the best kept secrets with respect to most chemical contraceptives is that they act as abortifacients.  These would have to be made illegal immediately.  The killing of an innocent child in the womb involves the type of “grievous vice” that St. Thomas said must always be outlawed.   In fact one could argue (although it might be difficult to prove) that more abortions occur through the use of these “medicines” and devices than the 1.2 million that are performed directly in the US each year.

Justice Harry Blackmum in the Roe vs. Wade decision said “we need not resolve the difficult question as to when life begins.”  But this is precisely the question that needs to be answered as shown by the rather schizophrenic manner in which he later says, “(If the) suggestion of personhood [of the preborn] is established, the [abortion rights] case, of course, collapses, for the fetus’ right to life is then guaranteed specifically by the [14th] Amendment.”  A policy such as this would force an answer to this “difficult question” because of the prevalence of chemical contraceptives.

Furthermore this would force out into the open the myth of government neutrality.  Even though one may say that the question of personhood is “above my pay grade” and attempt to appear neutral, this so-called neutral position makes a claim that personhood begins at birth (as distinct from “partial-birth”).

This is one of those rare cases in our society in which we drown out the voice of science.  When Congress attempted to answer the question in 1981, they found that “(P)hysicians, biologists, and other scientists agree that conception marks the beginning of the life of a human being – a being that is alive and is a member of the human species. There is overwhelming agreement on this point in countless medical, biological, and scientific writings.”[6]  Unfortunately that initiative failed thirty years ago.  It is time it be reopened in order to provide a definitive answer.

Effect on the Common Good

In Huxley’s book, the disillusioned Bernard is banned to the Falkland Islands.  While a candidate that ran on a platform that proposed removing the government from the business of providing contraception might get elected , I fear a similar fate to Bernard’s would await any candidate that proposed outlawing all chemical contraception with abortifacient properties.  Nevertheless the morally responsible policy would be one such as what has been proposed.  Still, one aspect that should be examined is the harm that readily available contraception does to the common good, especially to women.

Contraception is often presented as an important issue related to “women’s health.”  But as economist Timothy Reichert[7] [8] has shown contraception is anything but a social good for women.  It shifts wealth and power away from women by creating a “prisoner’s dilemma” game where each woman is induced to make decisions that make her and other women worse off in the long run.

One of the social consequences of a contraceptive culture is that what was once a single mating market—men and women paired in marriage—has now become two markets.  There is the classic “marriage market” that represents the market for marital relationships and a “sex market” which represents a market for sexual relationships.  Because of ready access to contraception, both men and women frequent the “sex market” earlier in life and then inhabit the “marriage market” later in life.  With supposedly more reliable contraception, assurance is provided that participation in the sex market will not result in pregnancy.  This separation into markets is not necessarily adverse to either sex assuming that the amount of sex being had is the same.  It only becomes adverse to one of the sexes when there are imbalances in the “price” that is paid.  The price the women pay is much higher than the men.

The two markets are not equally populated by men and women.  At a certain age because of their biological clock most women will inhabit the marriage market rather than the sex market.  Men do not enter the marriage market at the same time or even at the same rate.  The imbalance comes in that in the sex market women have more bargaining power than men since they are the scarce commodity and can command higher “prices”.  The picture is flipped over when women make the switch to the marriage market in that there is a relative scarcity of marriageable men—over time women cut deals and settle for less of a man.  Thus men take more and more of the “gains from trade” that marriage creates and women take fewer and fewer.

Contraception then ultimately leads to divorce for two reasons.  The first is because of the lower relative bargaining power that women wield relative to men, more women will simply strike bad deals.  Secondly, it creates a demand for divorce before marriage even occurs.  Women now need a pre-marriage exit strategy in case things turn out badly.  They do this primarily by going into the labor market at the price of developing stronger familial relationships.

You might say that professional development is worth the price of stronger familial relationships for women because the women are more personally satisfied.  However this ignores the fact that about half the children who are placed in daycares are girls or future women.

Obviously contraception also increases the incidence of infidelity.  It opens up more opportunities for infidelity to married men than it does married women.  It is easier for an older man to enter the “sex market” than an older woman.  It also increases a demand for abortion in that women rationally plan their human capital investments around childbearing in the later phases of their lives.

Conclusion

As economists and social scientists know, it is nearly impossible to break out of a prisoner’s dilemma unless there are changes in laws and social mores. Thus even from a common good standpoint it is necessary that the access to contraception be limited greatly.  This begins first of all by removing the government as a provider of contraceptives.  The Church also has a key role to play by not only continuing to preach the message of just how harmful contraception is to women, but also to preach a “new feminism” that John Paul II initiated in his Letter to Women.

Richard Birdsall is a graduate student in philosophy at Holy Apostles College and Seminary. He currently works as a consultant on air traffic control issues and retired from the Federal Aviation Administration after more than 30 years as an air traffic controller and computer systems manager. He lives in Jacksonville, Florida with his wife, Marian, and their 4 cats.

How “Common” is the Common Good?

The Desire for a Common Good

The title of this essay poses what seems like a nonsensical question. How can a “good” identified as “common” not be a good valued by all or most members of a community? For more than one hundred years we’ve used the term “community” as an emblem of our wish to live in groups where members are close, harmonious, warm. To be in a place where bonds among people are strong and members cooperate to achieve shared goals. The primary goal of this imagined community is a common good.[i]  This common good is defined either by a sense of place, as shared interests, or in the spirit of communion where our sense of “belongingness” derives from a profound union of people with an overarching identity as found in a communion of believers. [ii] Our desire to be in such a place is profound and instinctive, instilled at birth and reinforced by our desire and need for a strong supportive family living in a community of families with shared goals and values.

But such a sense of shared community values, commonly held goals, or a value system held by all community members hardly seems recognizable in the current climate of division and conflict. Rather, we appear to live in communities riven with cross-cutting opinions, exclusionary politics, strident critics pushing for mutually contradictory social and political changes.

Three Events Challenging the Existence of a Common Good

Three recent events appear to confirm an appearance of wildly divergent goals and values held by members of the American community. These events include the attempt to impose a requirement for health insurance carried by Catholic institutions to cover birth control (commonly referred to as the HHS Mandate), an exchange between the U.S. Conference of Catholic Bishops and Representative Paul Ryan of Wisconsin about Representative Ryan’s national budget proposal and, a dustup caused by a Goldman Sachs executive very public resignation through an accusatory letter published as an op-ed piece in The New York Times.

Each of these events reveals deep divisions in our sense of what our national community represents and what represents a good – a goal – common to the community. But what might such a goal look like? The philosopher Charles Frankel offers his definition of the public interest (another term for a common good),

The ideal of the public interest calls on men, despite their egoism, to set their preferences side by side with the preferences of others, and to examine them all with the same disinterestedness and impartiality. It asks them to seek as tolerable and comprehensive a compromise among these interests as is possible. And it reminds them that every decision they make is a limited one, that some interests may have been overlooked, that something better may be possible.”[iii]

Frankel describes a rational process of community members impartially examining a collective set of preferences and selecting those that best meet the needs of the entire community. He imagines a continuous selection process revising its preference list as more satisfactory solutions present themselves. How do these three events match Frankel’s ideal? Or will they confirm Walter Lippmann’s cynical version of public interest that “the public interest may be presumed to be what men would choose if they saw clearly, thought rationally, acted disinterestedly and benevolently”?[iv]

Imposition of the HHS Mandate

The Obama Administration proposed a rule in the summer of 2011 requiring private insurance to include birth control in their coverage. Not only must insurance providers include birth control but it must included without any out-of-pocket charges. The controversy over this rule is presaged by the 200,000 comments the proposed rule attracted. [v]

As soon as Health and Human Services (HHS)Secretary Kathleen Sebelius announced a new rule requiring all private insurance plans include contraception services at no additional charge and that all businesses offering health plans, including businesses affiliated with the Catholic Church which opposes offering such services as a matter of religious belief,  are required to provide this new contraception plan as well (what is now known as the HHS mandate), both critics and supporters moved into action. Cardinal Timothy Dolan, president of the U.S. Conference of Catholic Bishops criticized both the rule and the delay in enforcement for one year after enactment as saying “[i]n effect…we have a year to figure out how to violate our consciences. The Obama administration has now drawn an unprecedented line in the sand” through its intrusion into religious practices. A spokesman for the University of Notre Dame ridiculed the decision in its response: “This is not a logistical matter. This is a matter of conscience.” Other critics included an administrator of a chain of Catholic hospitals labeling the mandate as “nothing less than a direct attack on religion and First Amendment rights”.[vi]

Advocates of the mandate seemed to be talking about an entirely different measure. A congresswoman called the rule “a tremendous victory. For years there has been a relentless campaign to politicize women’s health issues and it is endangering the health of women and their families”.  A U.S. senator reacted to the rule announcement with “this is good news for millions of women whose access to contraceptive services under this new benefit was being questioned, “while the HHS Secretary portrayed the delay option (the one-year enforcement delay) as striking “a balance between respecting religious freedom and increasing access to important preventive services.”[vii]

Each side of this issue established a position with absolutely no overlap. Mandate critics labeled the rule a violation of conscience and an unconstitutional attack on religious liberty. Mandate advocates see the rule as a matter of women’s rights and health and a proper balance between the freedom of practicing one’s religious conscience and promoting a basic health care right. The common good violated in the eyes of the Church was an unconstitutional intrusion on religious practice and belief while advocates saw the mandate as supporting the common good of supporting the welfare of women and the human right of access to basic medical care.

The Dolan-Ryan Debate On the Federal Budget

Upon publication of the U.S. House Committee on the Budget proposal for the 2012 national budget Cardinal Timothy Dolan, in his role as president of the U.S. Council of Catholic Bishops, wrote to committee chairman Paul Ryan in an attempt to influence the goals of the budget.  The proposed budget sharply cut public assistance programs and, over a decade and a half or so, reduces federal government activity substantially. Dolan’s letter offers moral criteria for all budgetary decisions:

1. Every budget decision should be assessed by whether it protects or threatens human life and dignity.
2. A central moral measure of any budget proposal is how it affects “the least of these” (Matthew 25). The needs of those who are hungry and homeless, without work or in poverty should come first.
3. Government and other institutions have a shared responsibility to promote the common good of all, especially ordinary workers and families who struggle to live in dignity in difficult economic times.

The letter goes on to instruct Representative Ryan that essential services to the poor cannot compose a disproportionate share of the budget cuts and that the “moral measure of this budget debate is not which party wins … but rather how those who are jobless, hungry, homeless or poor are treated.”[viii]

Ryan claims, in response, that his proposal “outlines overdue reforms of the nation’s safety net programs for working and poor families, implicating the social Magisterium and creating a necessary dialogue about government programs among fellow Catholics”, concluding that we as a community “have a moral obligation, implicit in the Church’s social teaching, to address difficult basic problems before they explode into social crisis. This is what we have done, to the best of our ability, in our Fiscal Year 2012 Budget Resolution.”[ix]

The polite tone of this exchange masks the utterly divergent views expressed by the correspondents. Cardinal Dolan suggests the needs of the poor, the hungry, the homeless are forgotten as the two political parties tussle over the budget while Representative Ryan responds that the support previous budgets offered children and adults in poverty contradicted Catholic doctrine through the threat of public assistance “to human dignity…now being realized in America.”[x] Cardinal Dolan’s and Representative Ryan’s arguments are described by non-overlapping circles. Nothing common in their individual views of the common good.

A Resignation as a Declaration of Morality

The third example is another event played out before us in national newspapers. A mid-level executive with the investment banking and securities firm Goldman Sachs submitted his resignation by way of the editorial page of The New York Times.  He tells the Times readers he left because Goldman Sachs was encouraging “the interests of the client continue to be sidelined in the way the firm operates” and instead focus on “making money.”  In meetings at the firm he attended prior to leaving he finds that “not a single minute is spent asking questions about how we can help clients. It’s purely about how we can make the most possible money off of them.” [xi]

Yet Goldman Sachs had behaved in just this way for years before this executive’s resignation. Two years before the executive’s public resignation, Goldman Sachs high-level executives were excoriated for 11 hours before a Senate panel investigating the firm’s role in the financial crisis.[xii] The panel cited employee emails ridiculing the products they were selling. When confronted with these emails a Goldman Sachs executive responded, “I think that’s a very unfortunate thing to have on an email.”[xiii] Despite public airing of the firm’s marketing of faulty products they managed to generate $6 billion in net revenues during a recent quarter. Their financial success cloaks and legitimizes, looking through the lens of their own employees, their focus on money over service to clients. Success and affiliation become the moral measure. “When we were selling a company and Goldman represented us, we loved them,” said a financial sector worker. The firm’s consistent success itself undermines the resigned executive’s moral stance. “[I]t’s the life he chose and he couldn’t have been too bad at it if he stayed for over 10 years,” opined one veteran Goldman Sachs employee.[xiv] Corporate bad behavior is overlooked when that behavior benefits the viewer and Goldman Sachs employees objecting to this behavior are criticized for not completely abandoning their own moral principles.

An Apparent Gulf Between Definition and Practice

Each of these examples illustrates an enormous gulf between formal definitions of the common good such as the one offered by Charles Frankel and the common good actually practiced by corporate actors.  Such a gap undermines objective concepts of the common good, leading to ambiguity in both definition and operationalization of a formal definition. Is there a broadly shared concept of the common good still alive or have we all surrendered to Lippmann’s cynical dismissal of any real expectation of people acting selflessly in the name of that shared concept?

No Shared Definition of the Common Good

If a recent issue of the journal Daedalus is any indication, we don’t have a consensus view of the common good or, as the journal contributors describe it: the public interest.  Nathan Glazer suggests in this issue that defining the public interest is not so easy in practice because actions taken in the name of public interest in the short term may undermine longer-term efforts. Do we provide more funds for the needy now or do we invest in the economy for a longer-term and more robust economy, facilitating an economic high tide lift all boats? He goes on to ask which public do we aim our policies? Do we build public housing now only to see the long-term effects of stacking people in buildings is an increase in crime, victimizing the very people the housing policy meant to help?[xv]

The other contributors to this issue of Daedalus offer no helpful insight into the question of commonly held beliefs of the common good. The economist Jagdish Bhagwati suggests that economic analyses of policies supporting the public interest are of little use. Analysis often leads to irreconcilable differences, not just between economists and others but also between economists themselves. Different economic schools plague economists: monetarist, rational expectation, varying versions of each. Even when agreeing on a particular economic school of thought they will disagree on study parameters. [xvi]

Robert Bellah argues that the public has become extraordinarily skeptical of government and its ability to govern in the interest of all. Rather, politics is a way to get what one wants through undue influence or through the use of questionable tactics or through outright bribery. This skepticism has loosened the bonds connecting the electorate with those they elect and has eroded confidence in the practice of democracy. Groups that in the past provided experience of direct democracy have been in decline for more than three decades, throwing people back on their own resources and exaggerating the sense of “personal responsibility” and the need to make it on one’s own. Bellah wonders if a society operated by private ambition lacking in any sense of virtue and human goodness can face the daunting ethical problems we face today.[xvii]

Conclusion

As despairing as these article are they quite pointedly identify the outcomes of a society that does not possess a commonly held sense of the purpose of a society or its goals. The products of such a society are a legion of Goldman Sachs, legitimized by their profits and critical of those who do not adopt or approve of their cynical practices. It leads to a political calculation to impose a mandate violating religious conscience expecting a cascade of applause rather than the avalanche of criticism prompted by the mandate. Abandonment of an overarching vision of societal goals allows its ends to be manipulated for political gain.

One possible answer to this problem is the Catholic tradition of a civil rights “grounded in the dignity of the person as rational and responsible for his or her own ultimate commitments”. [xviii] The common good in this tradition is a description of social coherence with justice as its standard, rights and duties as its constituents and public authority as its guarantors. At its base is the dignity of man made in God’s image. [xix] Aquinas stitches together this notion into natural law. “[T]he definition of law…is nothing else than…an ordinance…of reason…for the common good,…made by him who has care of the community, … and promulgated.” [xx]  Morality is associated with our commonly held human qualities and values which communicates the eternal law of God upon which natural law rests and allows a mutual sharing of moral insights.  Cahill summarizes this view of the common good quite ably:

To use the framework “common good” is to claim both that there can be a general consistency in formal definitions of what enhances human life in society (justice, rights, duties) and that it is necessary to pose continually the substantive question of which social arrangements enhance human dignity concretely.[xxi]

Pope Paul VI’s Gaudim et Spes defines the common good as  “the sum total of social conditions which allow people, either as groups or as individuals, to reach their fulfillment more fully and more easily.”[xxii] Within the Catholic tradition the ends – the teleology – of society are obvious and necessary. Daniel Finn identifies the Biblical concept of sedeq as an “an essential backdrop for the common good” [xxiii] and so a direct link between the social necessity of the common good and our ontology. Sedeq is God’s fidelity, kindness and justice. It is the order of God’s plans – natural law. Sedeq is God’s saving act such as we find in the Exodus and at Calvary. Lastly, it is “an empowering divine gift to humans to continue the work of God and as a divine invitation for people to be righteous themselves.” [xxiv] Naturally, God acts with purpose and his bestowing of sedeq upon us reflects the natural and moral order in our lives and existence. So when we look at the function of society through the discipline of sociology we see the working of God’s purpose reflected in the order of our lives – or our disorder in an attempted disavowal of God’s purpose.

Bibliography

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Endnotes

Expect the conference papers to be up today for the start of this year’s Online Conference. Check back often to read the papers and participate in the conversation.