Paving the Road to Legal Nihilism

Listening to the justices of the Supreme Court of the United States discourse about marriage is as close to an exercise in philosophical futility as a rational person is liable to experience in life. Recently, on the question of 'homosexual marriage' I got so far as to hear one of the justices insist that no limitation could be placed on groups of persons to prevent them from marrying.  It was manifest that the stacked definitional deck the SCOTUS progressives are playing with did not render the speaker self-conscious about the meaning of his own words.  Now, clearly, the justice in question was taking the term "group" distributively:  that individuals of a group ought not be rejected from marriage merely by virtue of membership in a group.  But, if marriage is so "content-neutral" with respect to the relation of biological parenthood and children that no individual of a group can be refused the "right" to marry, other criteria are clearly equally subject to arbitrary variance.  If it is no longer a question of the state interest in promoting the relation of biological parents and children then there is no reason whatsoever why groups of persons as such should be absolutely prohibited from marrying.  Of course, there are such reasons:  but they are a function of nature and if we are not to discriminate owing to nature and the fundamental historical character of the institution of marriage is to be a mere object of social reconstruction, number is arguably less fundamental a natural consideration than the opposite sex nature of marital union (although clearly both are fundamental!).  Indeed, the meaning of "union" is purely equivocal between homosexual relations and heterosexual marriage, whereas the quantity of heterosexual relations at least admits of procreative nature. 

If the only criterion is lifelong commitment and love, then who are the members of the Supreme Court to say that a group of 50 cannot love one another sufficiently to marry? If the law exists to regulate spiritual affinities, then why shouldn't profound and lifelong affinity annealing the friendship of 50 be as valid as that which effects the union of two? Why should glee clubs and football teams be arbitrarily denied the dignity of marriage, unjustly prohibited from marrying?  If all are allowed to seek marriage, then by what norm is the "all" taken distributively rather than collectively?   If it is said that the reason is that marriage must be limited to "2" what is the ratio or ground for this judgment--a reason that as progressivists always insist must be neither religious nor procreative?  Of course, the institution of marriage is in reality a function of the normative ordering of natural procreation to children and child-rearing, and of the just concern of the state to regulate such unions for the sake of the protection of children.  But once we negate this proposition, then why is "the couple" the fundamental "unit" of marriage?  Why should the psychological peculiarity of what may occur with 2 human beings be preferred by state policy over the psychological peculiarity of what may happen among 20?  Surely they should have access as a group:  certainly they are not less procreative than homosexual couples.  And isn't "more love" a good thing?  Do progressivists have a numerological conception of marriage?  Perhaps 2 is Kagan's lucky number? And why shouldn't others "think differently"--William Jefferson Clinton may apply his wife's phrase "It takes a Village" to this particular problem.

The progressive justices seemingly have no idea what marriage is, which is manifest by their insistence that marriage is basically anything that two people who wish to enjoy certain benefits may imagine it to be.  And all such claimants are to be conferred the "right" to insist that everyone publicly acknowledge their new status.  It is critical to note that the issue is not about how one "feels" about homosexuals, but about whether the legal institution of marriage is to be abrogated, wholly redesigned in relation to purposes that literally have nothing to do with it.  Marriage as an institution did not develop to regulate friendships, but because of the nature of the procreative society between a man and a woman, and the effort to promote the stability of that society for the sake of the good of children.  Proponents of homosexual marriage argue that those who by nature and not by accidental impediment are sterile should receive the "benefits" and 'status" conferred by the institution of marriage:  which is like arguing that those not entered in Olympic events should receive medals for those events.

It is conspicuous that the court cannot so much as entertain the idea of natural order with respect to procreation. Many SCOTUS justices simply do not understand why accidentally infertile couples are reasonably distinguished from essentially infertile couples.  They cannot distinguish between a peach tree and a stone, because a peach tree may have accidental impediment to bringing forth fruit and still be essentially ordered to bringing forth fruit:  but a stone is not essentially ordered to bringing forth fruit.  An accidentally infecund couple is still performing what is essentially a procreative act.  This is not something that is true of homosexual activity, which is essentially and necessarily infertile.  Nor do certain of the justices understand that many women who are thought incapable of conceiving children nonetheless do conceive children.  No matter what one's view of the moral analysis of the matter, it is simply true that homosexual "parents" are so called by a pure analogy of attribution with respect to biological parenthood (without which latter reality the legal institution of marriage would not exist nor, one might justifiably think, need to exist).

A homosexual couple is not accidentally but essentially infecund.  If this fact does not bear upon access to marriage, then the fact of a man's paternity cannot be a legal ground for not recognizing him as a mother.  But of course, SCOTUS seems to have crossed this bridge a long while ago.  For example, a sex-changed male, who remains by genetic nature a male, may indeed be categorized by SCOTUS as a mother--for the court, the term seems to be nothing but a term of legal art upon which certain natural facts may occasionally and quasi-accidentally obtrude, but not a term founded upon natural order.  We live in the SCOTUS of Bruce Jenner (aka "Caitlyn" and "how one feels" about this is supposed to trump reason and objectivity). Of course, this does not settle the matter universally and regarding every case as to whether institutions may necessarily presuppose natural order in certain ways--lunacy in one area may somehow be reconciled with reason in another.  But the clear tendency of court progressives is to deny the moral and legal significance of natural order.  This is the same reason that homosexual "parents" may adopt children.  The court has decided that "parents" means whatever they want it to mean.  If they decide it means basketball teams, then basketball teams will be permitted to adopt.  And indeed, there seems no good reason why SCOTUS would not permit communes as such to adopt children.  Why shouldn't the Democratic Party be capable of marriage? 

The progressivist justices operate with an impoverished caricature of an "empirical" conception of nature--a third rate imitation of the subtler reasoning of Hume which itself cannot withstand natural analysis--and therefore, no other conception of nature and its relation to morality and law is to be permitted in the public sphere.  This is the legal order in which the New Natural Law Theory actually has a certain evolutionary advantage, because in the destructive devolution of legal and social order, it can forward itself as consistent with the Ur Principle of the positivist myth, that the "ought" is in no sense whatsoever founded upon or derivative from the "is":  that nature is in itself bereft of normative end or good.  But gaining the right to speak with SCOTUS progressives on the condition that one hold the philosophically contra-naturam and aberrant premise of modernity that there is no normative natural order prior to choice that necessarily conditions choice, social legislation and jurisprudence, is a "right" only dubiously worth exercising.  It is a "right" whose effects seem to extend only to minor damage control with respect to a universal earthquake.

The essential major premise of the SCOTUS progressives is simply this:  that one is to be prohibited by law from publicly and effectively acknowledging natural order as contributing anything normatively foundational to morals and law beyond "the nature of consent".  The progressivist justices of SCOTUS now occupy a preserve of reductionism which dictates (as they say themselves) that those who differ with them can have no rational basis for doing so.  But of course, they provide no truly rational basis for denying either natural teleology or its moral significance, and indeed, there is no reason to think them even minimally literate on the question.  Nonetheless, we are instructed, the sexual ethic of Ginsburg, Kagan, Soto Mayor, is beyond rational doubt:  Ginsburg locuta, cause finita est.  They propose a confessional state whose parameters are to be set by the dubious sexual ethics they seek to enshrine in law.

One must observe that the essential nature of consent with respect to marriage is no more immune in principle to philosophical and legal negation than is the heterosexual nature of marriage or the number susceptible of being legally married to one another.  Consent has a nature every bit as much as does marriage, for example.  Why should the nature of consent be so transcendently elevated in a world in which the nature of everything else is negated?  Nonetheless, seemingly for the justices consent appears to possess a superordinate status.  How this strange cosmological anomaly immunizing consent from the universal naturelessness of things should have come to pass the justices could not say:  it is simply their presupposition. And one is grateful to find that one actual natural reality is ceded some normative status by the justices, although given the effect of their general nihilism their "consent" functions in a universe so impoverished of natural order as to be a fantasy.    

What is the sequitur?  The court will with raw coercive force invalidate, undercut, and forcibly suppress the legislative and democratic processes of states once protected by the Constitution of the United States, supplanting these with their social constructivist demands.  The term "marriage" in the US Constitution must mean what Ginsburg thinks it should mean, and insofar as the US Constitution itself clearly has meant the contrary, or any legislature or vote should be at variance with the Court's impulse to redefine the moral and legal universe, the Court needs to invalidate and drive from the public realm any such views. This is what some of the justices seem to mean by the word "libertarian"--i.e., the power to enforce a legal doctrine in which nature is wholly divorced from law and may not be considered to contribute any normative element to legal understanding in public life and discourse.  That this term "libertarian" is associated with such a doctrine is a perversion of the meaning of the term, since it requires the assertion of what amounts to a  confessional state mandating and requiring public derogation of all other claims on human conscience.  All must publicly acknowledge the sexual ethic of the progressives as having the status of an unquestionable constitutional absolute which there could be no rational ground for questioning.  Ginsburg cannot imagine any naturally normative disproportion between sodomy and marriage, and therefore:  no one else may think differently. Scalia warned of this implication when the anti-sodomy laws were voided by SCOTUS, arguing that it would quickly become "a right".  His comments were mocked.  He was--of course--correct. 

In any case, since the idea of natural teleological order as normative is incomprehensible to the justices, it must be forbidden as a referent for public action.  "All animals are equal, but some animals are more equal than others." Those with post-modern ethical theories evidently are citizens whose arguments are to be heard, while all others are a new sub-class who cannot be acknowledged so much as to have reasons.  Because the justices cannot conceive a reason normed naturally and teleologically, those who reason in this fashion must be denied any right of self-government, and their legal and moral status must be negated.  

One need not be overly enamored of libertarian thought to observe that for the state to determine that all prior thought and custom regarding marriage is to be coercively re-designed by persons assuming that they monopolize reason is not plausibly explicated as libertarian.  If the progressivist view is embraced by the court, states will be forced to genuflect before ethical views contrary to those on which our institutions are predicated, on the force of no genuine political consensus, and presupposing philosophic judgments that are indefensible (e.g., that agency is intelligible as agency without normative reference to end).

Progressivists truly do not understand that on the day that the arbitrary power they have loosed is finally used to destroy their own place in democratic life, they themselves shall have forged the instrument of their destruction.  They are begging the legally constrained originalism of most conservatives to morph into an activism equally as assertive and univocal as their own.  What will they do, when this happens?  Claim there is no precedent?  It will fall on deaf ears. They are paving the way to nightmarish constitutional civil war cloaked in SCOTUS 'cases'. By utterly politicizing the Court, they are inviting all parties to participate in a scramble for power to univocally "solve" the culture wars.  The justices supporting the abolition of the legal institution of marriage as it has been known and cherished for millennia, are people who wish to rule citizens of the US somewhat the way MacArthur ruled Japan, save that their aspirations are far more expansive, arbitrary, and unreasonable.  They have decided that the immemorial institutions of American society do not please them.  And they take themselves to have a duty to violate the legal and moral convictions of the founding expressed in the US Constitution. At the time of the founding, sodomy was a crime; marriage was clearly defined; and no power to alter the definition of marriage was identified as belonging to the federal courts.  In response to this, the SCOTUS progressives assume a power nowhere bestowed; do not care in the least what the Constitution dictates; but wish very much to be obeyed although no legislative authority has licensed their claims...and to be obeyed at the cost of derogating conscience and religious liberty.  

The fragile flower of social tolerance rooted in charity--as distinct from positive approval--is also being placed at significant risk by the effort to coerce states to abandon the legal institution of marriage...  The epoch during which tolerance exhibited by persons who disagreed about sexual morality has been the norm, is being terminated, to be replaced by the era in which internal assent and active celebration contrary to conscience is to be commanded by positive law in behalf of the 'new status'. Of course, it is already true that in many cases private persons are being coerced to perform creative acts celebrating what they believe to be morally bad conduct, commanded by the state to violate their consciences. Should a Planned Parenthood baker be required by law to provide food for a pro-life rally?  Should a homosexual baker be required to provide a cake iced with scriptural lines condemning homosexuality?  One might think not. Nor should wedding photographers or bakers whose conscientious judgment instructs them that homosexual relations are disordered and by nature non-marital be coerced to celebrate such relations. Eating bread gained through the coercion of someone else's conscience used to be thought something beneath one's dignity. Even confessional states did not expect this.  But progressives seemingly have no regard for conscience:  it is an inconvenience to social reconstruction.  

If an atheist baker had objected to providing a cake for my Roman Catholic wedding, I would have pitied him and gone elsewhere, not sued him (being an atheist is penalty enough).  But when "marriage" is simply about a "conferred status" no one may be permitted to snicker.  Having removed the essential natural basis of the institution, the emperor really hasn't any clothes. So the pressure must be ratcheted up. Those who think there is a distinction between an institution bound up with the natural continuity of the human species and homosexual relations are "haters" and it is thought that they should not have civil rights. Those who believe homosexual activity is morally bad are to be coerced to honor it as equivalent to an institution that has literally nothing to do with it in either historical or natural terms, and, moreover, to celebrate it:  because Ginsburg, et alia, are convinced that they should.  Libertarian indeed.  Wedding photographers whose activity is an integral expression of their conviction about the nature of marriage are not to be permitted to ply their trade.  Religious universities that do not acknowledge homosexual marriage as marriage will be coerced to do so, or closed down at bayonet point. How very libertarian.  How tolerant.  How truly "progressive".  Religious liberty is to be quelled, lest the mere knowledge that not everyone gives internal assent to the new order should cause the world not to be sufficiently safe for sodomy.  How could anyone fail to see this in the US Constitution?  We have advanced so very far...  Of course, while all precedent, statutes, legislative jurisdictions, and the US Constitution itself may be suppressed to solemnize sodomy, somehow we must all be strict constructionists about the past few years of legal aberration during which SCOTUS has insisted that every woman has a constitutional right to a dead child.  Nor are these two novel and perverse "rights" unrelated.  The fact is, serious legal interpretation has nothing to do with these judicial decisions, which are nothing other than the imposition of raw progressivist prejudice on the legal structure of the entire country.  

Those saying now that "same sex marriage" can be constitutionally forced upon the states, might as well state:  "War is Peace, Freedom is Slavery, Ignorance is Strength."  George Orwell would know what the Court progressivists are, and how they operate.  Nonetheless, the greatest harm of such a SCOTUS ruling will be reserved for those who will persuade themselves of the falsehood which defines so much of Western culture today, and which progressives on the court are determined to impose:  namely, that ideological mantras like "inclusiveness" and "autonomy" should displace right reason and virtue with respect to the common good.  The progressivists will drive far from one another, and make even more unintelligible to one another, citizens who have profoundly divergent understandings of morality.  Rather than encourage tolerance, the court stands on the verge of a drive to annihilate the legal and moral standing of any party who does not in the internal forum of conscience believe that homosexual relations constitute marriage and should be honored and celebrated as such.  Ginsburg has decided that Aquinas has "no reason" for his judgments. The barrel of a gun held by progressives aching to impose their view of the universe does not suffice to move one to assent.

Progressivist justices bear a heavy responsibility before God and human conscience for violating a possession so intimately necessary to liberty and justice in society as the constitutional rule of law.  Their indifference to the actual meaning of the US Constitution seems of itself difficult to reconcile with their oath of office. And their lack of understanding of the immemorial institution of marriage signifies a remarkable civilizational deficit among persons called to hold such high office.  Natureless "consent" whirring in a vacuum cannot replace the institutions of a free people:  but seemingly it can serve as the ideological pretext for barbaric destruction of a legal tradition. 

Intention, Death, and Doctrinal Mutation: Universal Tradition and the Death Penalty

Christopher Tollefsen writes arguing the intrinsic evil of the death penalty, here.  He forwards reasons that he deems sufficient to relegate the consensus of the fathers and doctors, and prior ecclesial judgments regarding the death penalty, to the dustbin of history along with prior acceptance of slavery, and buttresses his argument with an analysis of intention (in support of the proposition that God cannot intend death),   Here  I will argue that his analysis of the tradition (e.g., the oath required of the Waldensians to re-establish ecclesial communion), and the likenesses he draws of the death penalty with slavery in terms of the tradition simply cannot be sustained.  To be unequivocal, I will put it straightforwardly:  any claim that the death penalty is absolutely and intrinsically unjust contradicts the consensus of the Fathers and Doctors and numerous prior papal teachings. The likeness drawn with support for slavery is unsustainable. The teaching that the death penalty is intrinsically evil seems very directly to contradict Scripture and Tradition.  The claim that the death penalty is intrinsically evil also poses profound challenges to--perhaps even contradiction of--the Church's teaching regarding the nature of the redemption; the nature of penalty as such including the penalty of final damnation; and the Church's traditional understanding of human dignity itself as defined by the teleological ordering of the imago dei of representation to the imago dei of conformity with God. 

With respect to the tradition, Tollefsen argues as follows:

Moreover, and this is a key point of Long and others, the medieval followers of the heretic Peter Waldo were made to swear an oath by the Church, asserting: “Concerning secular power we declare that without mortal sin it is possible to exercise a judgment of blood as long as one proceeds to bring punishment not in hatred but in judgment, not incautiously but advisedly.” Long finds a “high theological note” in this oath, and asserts that it indicates that “as such it [the death penalty] cannot be malum in se”, i.e., intrinsically wrong.

But there is a considerable difference between swearing that a type of act is not intrinsically wrong, and swearing that those who undertake that kind of act, under particular circumstances, and given certain states of mind, need not commit mortal sins in doing so. Put another way, the oath only requires an affirmation about the subjective state of those who pass or execute lethal sentence, and this subjective state is one we should expect to find in a culture that uniformly accepts the death penalty as just and indeed divinely permitted.

But the oath imposed on the Waldensians went to the intrinsic moral permissibility of a judgment of blood.  To say it was only about a judgment of blood "under particular circumstances" is misleading. The very question at stake was whether under any circumstances so grave an act could be moral. The Church's requirement that the Waldensians swear that under some circumstances, the penalty may be imposed without mortal sin, was a response to the Waldensian judgment that imposing the death penalty is intrinsically evil, a malum in se, such that deliberately and voluntarily imposing it is always evil.  It does not address merely the subjective state of those imposing it.  On this score, his description of the actual oath required of the Waldensians seems to be fatally inaccurate.  The oath was formulated precisely to exclude the position that Tollefsen apparently holds.  Cf. Enchiridion Symbolorum (Denzinger, 30th edition, tr. Deferrari; New Hampshire:  Loretto Publications, 1954) #425, p. 168:

De potestate saeculari asseriumus, quod sine peccato mortali postest iudicium sanuinis exercere, dummodo ad inferandam vindictam non odio, sed iudicio, non incaute, sed consulte procedat.

Concerning secular power we declare that without mortal sin it is possible to exercise a judgment of blood as long as one proceeds to bring punishment not in hatred but in judgment, not incautiously but advisedly.

Someone might wish to argue to the contrary:  e.g., that these words are compatible with addressing the case of someone imposing the penalty who is invincibly ignorant.  But that is very clearly not the nature of the imposed oath nor the purpose for which it was imposed.  Directly to the point:  how does one "advisedly" and "not incautiously" perform a malum in se?  Can one even imagine the Church saying about, say, adultery, that "without mortal sin it is possible to exercise the passions of the flesh with one's neighbor's wife so long as one proceeds to the act of adultery not purely in lust, but in judgment, not incautiously but advisedly"?  Would Tollefsen swear such an oath, on the supposition that it merely concerned one's "subjective state"?  Or suppose this to be an intelligible formulation?  No more is it an intelligible rendering of the oath required of the Waldensians by the Church, which manifests a high theological note that must be observed when considering the fonts of this question in the tradition.  It is utterly frivolous to fail to see that this formulation asserts that the death penalty is not an intrinsic evil.  Why does it manifest a "high theological note"? Because the Church required this as a condition for the re-establishment of ecclesial communion. That is to say, for so long as the Waldensians held that the death penalty were intrinsically evil, they could not be in union with the Roman Catholic Church.  And this is because the view that the death penalty is intrinsically evil was considered to be gravely at variance with Catholic teaching. This is far from a mere "permission"--this is an ecclesial judgment that the claim that the penalty is essentially immoral is not compatible with Catholic faith.  Regarding any view that the death penalty is intrinsically and absolutely evil (as distinct from general prudential arguments against its application), to the present day there remain very strong reasons to hold that such a view is incompatible with Scripture and Tradition, and with the universal teaching of the Church articulated by the Fathers and by many pontificates (not excluding either Pope John Paul II, who never included it in the list of mala in se in Evangelium Vitae, or Pope Benedict XVI, who when he was prefect of the CDF famously wrote Cardinal McCarrick that dissent over the prudential aspect of John Paul II's teaching on the death penalty was licit and could not be compared to rejection of the Church's teaching on abortion or euthanasia).

Tollefsen also argues:

This is an important point for the larger Catholic question of capital punishment and the development of doctrine. Some worry that if the Church can develop on this, it can develop on anything. But there is a crucial difference between Church teaching on capital punishment and Church teaching on, say, abortion. The Church has always—always—taught that abortion is never to be performed, or sought after. Failure to abide by this teaching is considered a mortal sin, and incompatible with life in God’s love. But the Church has never taught that the death penalty is mandatory, nor has it taught that one sins if one rejects its permissibility (and as we’ve seen, this was not what the Waldensians were required to recant). At most, the Church has taught, and perhaps only accepted, its permissibility.

Note well how the argument has changed!  He starts by insisting that the death penalty is a malum in se, is intrinsically evil.  But if the penalty is intrinsically evil then it is precisely to be compared with abortion, something the Church has expressly rejected by formally and constantly affirming its moral validity.  Further, the Church has never said that abortion may without sin be pursued provided it is sought "not in hatred but in judgment, not incautiously but advisedly".  By Tollefsen's logic, since someone invincibly ignorant might not be culpable of the full malice of the act of abortion, the Church could require for the re-establishment of ecclesial communion an oath indicating that abortion is possible without mortal sin so long as it is performed "advisedly" and "not incautiously".  This is an impossibly contorted construction and simply untrue to the tradition.  

To the contrary, for the Church to teach the permissibility of the death penalty is for it to deny that it is a malum in se.  Further, this denial has been doctrinally clear and conspicuous.  It proceeds through many pontificates, it is shared by all the fathers of the Church, and it is found in indefinitely many approved catechisms, in addition to seemingly being present in Scripture itself (at least in the way that the Fathers read Scripture, which we are told by Trent--in its section on the use of the sacred books--is the way that we should read it).  Pius XII taught that the penalty was morally valid and not subject to cultural variation (Acta Apostolicae Sedis 47 (1955): 81-82.)

Tollefsen argues:

But so, seemingly, did the Church teach, or at least accept, the permissibility of holding slaves or coercing heretics. With regard to these practices, the Church’s teaching has, in developing, grown stricter, not more lenient. Even her teaching on religious liberty is not a freeing of what was once bound, but rather involves a new clarity on the limits that responsible political authority must accept. Moreover, those developments have proceeded by much the same path that the development, if such it is, on the death penalty has: by deepening insight into the nature and dignity of the human person, and the inviolability of human life. So it seems to me that a Catholic can accept the idea of development here without anxiety about other “mutations” of Church teachings.

Here is, from the vantage of the tradition, a compendium of error.  There is no comparable requirement imposed by the Church upon persons seeking to restore ecclesial communion that they formally swear an oath accepting the moral permissibility of slavery.  There are not multiple pontificates formally teaching that the practice of slavery is essentially just.  There are not innumerable catechisms teaching this.  Nor do all the Fathers of the Church teach it.  As for coercing heretics it is unclear what Tollefsen wishes to say, and so addressing this would run the risk of being even more unclear.

As for the claim that the opposition to slavery develops as does the opposition to the death penalty, as predicated upon "deepening insight into the nature and dignity of the human person, and the inviolability of human life"--sed contra.  Much of the contemporary opposition to the death penalty marks a regression of the understanding of human dignity so severe as to be virtually incompatible with the teaching of the Church regarding the imago dei in man. For according to tradition--to the Fathers and Doctors--the inceptive or initial imago dei of representation (the possession of rational nature, entailing in man spiritual faculties of intellect and will) is ordained to the imago dei of conformity with God, and its dignity principally consists in this ordering to noble good, common good, both in the order of nature and in the order of grace.  The initial dignity of man exists for the sake of the acquired dignity of man, and culpable failure with respect to this last merits penalty which is required not only for the common good, but to redress the wrongdoing of the sinner.  Acquired dignity is more central to man than the initial dignity of rational nature, which last is a dignity at all only and precisely because of its ordering to natural good and susceptibility to divine elevation and grace.  The initial dignity is a dignity because it is ordained to the acquired dignity which is more perfective than the first.  Yet much opposition to the death penalty proceeds by absolutizing this initial dignity rather than realizing that its perfection is found in conforming to God, and so failing to perceive that deliberate grave evil is contrary to this conformity and merits penalty.

Thus it is only because of the possession of rational dignity that the issue of penalty arises at all:  one does not penalize the earth after a particularly destructive earthquake.  Moreover, the Church's teaching regarding retribution as needing to be proportionate to the gravity of the offense is sustained throughout the tradition, up to and including Evangelium Vitae.  

One must pause to note that It is possible to think--although it is not necessarily and certainly true nor can it be always obligatory for Catholics to think--that general prudential circumstances might make the death penalty to tend in a way contrary to human dignity.  This would be a prudential judgment, and one that is as such--as prudential--intrinsically subject to variation of judgment, because prudential circumstances alter.  This is particularly true inasmuch as penalties are determinationes, determinations of prudence. Human penalty both looks back to the gravity of the offense, imposing a punishment proportionate to the crime, while looking forward to the needs of the common good, seeking to manifest in society a transcendent norm of justice, and also where and as befitting to pursue the quite different ends of conversion or rehabilitation of criminals, and of deterrence of wrongdoing. This last end of penalty is implicitly denied by many today.  But it is a matter both of the traditional understanding of the Church, and of the very nature of temporal penalty as such, that it look to the common good, one aspect of which is the deterrence of wrongdoing precisely through the application of penalty.

As St. Thomas puts it:

Respondeo dicendum quod vindicatio intantum licita est et virtuosa inquantum tendit ad cohibitionem malorum. Cohibentur autem aliqui a peccando, qui affectum virtutis non habent, per hoc quod timent amittere aliqua quae plus amant quam illa quae peccando adipiscuntur, alias timor non compesceret peccatum. Et ideo per subtractionem omnium quae homo maxime diligit, est vindicta de peccatis sumenda. Haec sunt autem quae homo maxime diligit, vitam, incolumitatem corporis, libertatem sui, et bona exteriora, puta divitias, patriam et gloriam. Et ideo, ut Augustinus refert, XXI de Civ. Dei, octo genera poenarum in legibus esse scribit Tullius, scilicet mortem, per quam tollitur vita; verbera et talionem (ut scilicet oculum pro oculo perdat), per quae amittit corporis incolumitatem; servitutem et vincula, per quae perdit libertatem; exilium, per quod perdit patriam; damnum, per quod perdit divitias; ignominiam, per quam perdit gloriam.

I respond that it should be said that vengeance (“vindicatio”—not quite what we mean today by vengeance, the virtue perfecting the inclination to remove that which is harmful) is lawful and virtuous so far as it tends toward the prevention of evil. Now some who are not influenced by motive of virtue are prevented from committing sin, through fear of losing those things which they love more than those they obtain by sinning, else fear would be no restraint to sin. Consequently vengeance for sin should be taken by depriving a man of what he loves most. Now the things which man loves most are, life, bodily safety, his own freedom, and external goods such as riches, his country and his good name. Wherefore, according to Augustine's reckoning (De Civ. Dei xxi), "Tully writes that the laws recognize eight kinds of punishment": namely, "death," whereby man is deprived of life; "stripes," "retaliation," or the loss of eye for eye, whereby man forfeits his bodily safety; slavery," and "imprisonment," whereby he is deprived of freedom; "exile" whereby he is banished from his country; "fines," whereby he is mulcted in his riches; "ignominy," whereby he loses his good name.

As determinations several penalties might in some case be essentially valid. But in certain circumstances there will be particularly important prudential reasons for favoring one over another for the sake of the common good.  And one such consideration is precisely that of deterrence.  Inasmuch as the penalty is--as is taught by universal tradition and by sacred scripture--retributively just and valid, in those circumstances in which imposition of the death penalty would most probably deter many further grave offenses, to privilege the life of the malefactor over the lives to be lost by failing to impose the just penalty does not appear particularly charitable.  Mercy presupposes justice, and justice does not exclude the death penalty.  While circumstance may prudentially preclude it--and may even generally do so, as occurs in regimes that fail in justice by treating all goods as private goods, in the reductionist culture known as "the culture of death"--it may also indicate it. The ability to restrain the felon who merits the death penalty in justice can be consistent with granting mercy; but it is not only the possibility of future acts of wrongdoing on the part of the criminal (wrongdoing which can continue even in prisons), but the likelihood of the imposed penalty to deter future such acts on the part of others similarly inclined, which must be considered.  

Deterrence is in charity one of the medicinal purposes of penalty for the sake of the common good. However, prudential opposition to the application of the penalty is always possible.  Penalty is a determination of prudence, and in some cases the imposition of the penalty may well be contrary to human dignity.  But it is not of its very nature contrary to human dignity.   The felon crucified with Our Lord who acknowledged deserving the penalty of death for his crimes was reconciled  in the very act of his own execution with God, and his acknowledgement that he deserved the penalty was not rebuked but accepted by Christ. It beggars the imagination to believe that Our Lord's utterance was an aposiopesis awaiting closure over the centuries only by the judgment of contemporaries who take themselves to have discovered that no crime can justly merit imposition of death and now implicitly would put words into Our Lord's mouth that He never spoke.  

Those who speak of the penalty as contrary to human dignity not in the context of some general prudential circumstances, but rather as absolutely and intrinsically contrary to dignity and so as a malum in se, implicitly anathematize the entire prior tradition of Catholic teaching.  They propose an account of human dignity that affirms that this dignity consists not in the ordering to transcendent common good both in the natural and supernatural orders, but rather indwells humanity in such a fashion that grave penalty for serious disorder is difficult to reconcile with it.  But this last does not sufficiently realize that the native and inceptive dignity of the human person consists in, and is specified by, its teleological ordering toward natural and supernatural good:  that the native dignity of the person is ordained to the superior acquired dignity of conforming to God and the eternal law. 

Were it true that the chief dignity of the human person is not acquired dignity but merely the possession of human nature, then everlasting physical penalty--clearly and infallibly taught by the Church--would be morally unintelligible.  But to the contrary, it is the defined teaching of the Church that those who perish in mortal sin are subject not only to eternal pain of loss, but even to everlasting bodily torment.  If human dignity absolutely and as such rules out penalty of death, how much more must it rule out everlasting penalty?  Who would not prefer death to everlasting suffering? Which is worse, the death penalty, which may be suffered in such a way as to remit sin and move one to the embrace of God Himself in time and for eternity (as scripture manifests in the instance of the criminal to whom Our Lord promised beatitude); or everlasting torment?  If we are to affirm that human dignity as such is incompatible with the death penalty, how can such dignity be compatible with, rather than immunize from, not only pain of loss but everlasting bodily torment?

Further, Christ suffered the penalty which we all have merited:  penalty of death.  But if penalty of death is wrongful in se, then God cannot justly have imposed it.  

Here we come, finally, to Tollefsen on intention.  And regarding this last, all that can be said is that he takes the object of the exterior act to exclude the integral nature and per se effects of what is chosen.  But St. Thomas Aquinas does not.  Nor, in fact, does the tradition, something that may be shown by analysis of the teaching of Aquinas and Ligouri in depth, as likewise by the analysis of the doctrinal assertions of the magisterium. E.g., as Thomas makes clear, someone stealing a precious object that is located in a Church is by that fact alone guilty both of theft and of sacrilege (cf. De malo, q. 2, art. 6, ad 2) . The thief noting only the preciousness of the object, and indifferent as to its accidental locale, may by reason of ignorance have a lesser culpability, but this does not go to the nature of the sin itself.  In any case, the integral nature and per se effects of what is chosen being included within the object of the external act pertains directly to Christ's voluntary offering of His life on the Cross.

St. Thomas uses "intentio" in different yet interrelated senses:  1) intention of the end as the ratio requiring the determination of the means; 2) intention of the end precisely through the means, and so extending to the object of the external act, which however is a secondary sense--because absolutely speaking intention of the end is necessarily prior to choice of the means and so prior to the intention of the end through the means; 3) intention as pertaining to any part of the motion toward the end.   While Tollefsen refers to intention of end and means, it seems that he does not sufficiently discriminate the nature of the chosen means:

But—like Aquinas—I hold that this free acceptance is a different act of will than the act of intending, in which an end is willed, and a means (or several means) chosen for the sake of bringing about that end. What Christ chose was perfect obedience to the Father for the sake of effecting a redemption of sinful humankind and a reconciliation of human and divine persons.

The above passage discriminates the end (effecting redemption in accord with the Father's will) but does not discriminate the chosen means precisely required by the Father's will:  the voluntary offering up of His life--a life that, as a divine person with a human nature, could not be taken from Him against His will.  Scripture is quite express on this point.  Thus John 10:18:  "No man taketh it away from me:  but I lay it down of myself, and I have power to lay it down: and I have power to take it up again." Death is not intended as simply a good in itself; yet, as annexed to a good, it may be intended as essential to the object of the external act:  because the integral nature and per se effects of action are included within the object of the external act.  Christ intended to do the Father's will, which was that He give His life as a ransom for many. The nature of the redemptive act matters.  Tollefsen continues:

But in doing so, Christ clearly willed, as accepting, the side effects of perfect obedience, in this case, suffering and death.

But it must be noted that Christ willed to accept these effects when He had the power to prevent them.  That is to say, He chose to undergo them, and indeed undergoing them is presented as essential for conformity to the Father's will. Drinking of this chalice was required of Him by the end of conforming to the Father's will.  To call that which He is commanded to do a "side-effect" is to strain not only the English but the Latin tongue. If I send my son to the store for a jar of pickles, it is not accidental to his conformity to my will that he intend to obtain a jar of pickles.  When the Eternal Father wills that Christ offer up His life as ransom for many, it is not accidental that Christ intends (in the secondary sense of "intend" that pertains to the object) to offer up His life as ransom for many.   He delivered Himself up to death, and that it was death to which He delivered Himself was not a side-effect.  Indeed, were Tollefsen's analysis correct, one might equally argue that--since the oblation is necessary to our redemption--that our redemption is a mere side-effect of the Passion (as opposed to being its essential purpose).  But it is not a mere side-effect:  the Passion and Death of Christ is that which achieves our redemption.  The Incarnation, occurring in passable flesh, from the beginning was willed for the sake of this oblation.  Christ willed to obey the Father's will for the glory of the Father, and for the redemption of mankind, and this will included, as its integral nature and per se effects, the intentional, free, and deliberate yielding of Himself to death on the Cross.  The Cross and its suffering were not intended and willed by Christ as per se will-able--as desirable simply in and of themselves--but intended and willed as essentially required for the sake of conformity with the Father's will and the redemption of mankind. 

Tollefsen continues:

Aquinas explains to us precisely why Christ’s voluntary acceptance must be invoked: Christ could have prevented his own suffering and death, and in this sense may be said to be an indirect cause of his own death by having allowed it. But the direct cause was those who brought about his death by their very intention: they chose to kill him to serve their various purposes.

It is true that Christ is not the cause of His own death save inasmuch as He wills to suffer it rather than prevent it as lay within His power. But he wills to suffer it because it is His Father's will that the redemption occur through the sacrifice.  Not everything that is not intended as an end is merely a "side-effect".  Christ did indeed choose to undergo death, to offer Himself up to death.  To exclude the offering of His own life from the external object of Christ's action, is to depict a different action.  Sed contra, Christ chose to offer Himself up to death.

In this way, Aquinas’s treatment of Christ’s Passion and death returns us to the issue of God’s intentions and the death penalty. For Christ’s relation to his Passion turns out to provide exactly the model of God’s relationship to human death I have argued for: God does not adopt human death as a means to any purpose, and thus does not intend it. But human death is accepted by God, for example, as the natural consequence of sin, which separates human persons from God’s protection.

"God does not adopt human death as a means to any purpose and thus does not intend it."  But God does adopt human death as a means of penalty--which is why we suffer it (the death we suffer is a penalty merited by the Fall); and the divine Person of the Word wills to embrace it and yield Himself up to death, precisely as the means of our salvation.  This last is de fide.  Christ does indeed "adopt" death as "means to the purpose" of our salvation, not as suicide, but as freely willing to suffer death as the means of our redemption.  "Side-effect" is inaccurate, because that which is willed as means is not merely "side-effect" and Christ willed to undergo His passion and death as means of our salvation.  That He did not cause His own death does not in the least imply that He did not freely intend and will to suffer death precisely as the means for our salvation.  

Thus it becomes clear how grave are the implications cascading from misunderstanding of the unified voice of scripture and tradition regarding the principled legitimacy of the death penalty for grave crime.  To say that the death penalty is a malum in se requires: negating the high theological note present in the Church's requirement that the Waldensians admit the principled legitimacy of a judgment of blood (for so long as imposed "advisedly" and "not incautiously"--language wholly incompatible with any thought that the application of the death penalty is always and everywhere unjust); revoking the Council of Trent with respect to the role of the Fathers with respect  to the interpretation of Scripture (e.g., Romans 13:4); contradicting numerous pontificates upholding the essential validity of the penalty; contradicting Scripture itself; and accepting a novel account of human dignity according to which the chief dignity of man is merely his inceptive dignity, the imago dei of representation, as opposed to the teaching that man's chief dignity consists in the divine ordering of man to common good both natural and supernatural whose summit is the imago dei of conformity to God in beatific vision.  For the very thing that constitutes our initial rational dignity, is precisely its ordering to noble good naturally and supernaturally; and so it is that dignity itself that requires the application of penalty when man culpably rejects and falls from the divine good.  Because the acquired dignity is ultimately more determining and perfective than our inceptive dignity--because that inceptive dignity is a dignity only because it is ordered to noble good naturally and supernaturally--culpable defect contrary to this order requires penalty.  Such penalty is not unjust:  it is due.  

One must recall, that our merely human penalties are more medicinal than retributive:  but divine penalty, howsoever much knowledge of it may and does deter man from sinning in this life, is in its application in the next life fully retributive.  Thus Summa theologiae, II-II, q. 66, art. 6, ad 2:

Ad secundum dicendum quod poenae praesentis vitae magis sunt medicinales quam retributivae, retributio enim reservatur divino iudicio, quod est secundum veritatem in peccantes. Et ideo secundum iudicium praesentis vitae non pro quolibet peccato mortali infligitur poena mortis, sed solum pro illis quae inferunt irreparabile nocumentum, vel etiam pro illis quae habent aliquam horribilem deformitatem. 

To the second it should be said that punishments of this life are more medicinal  than retributive. For retribution is reserved to the Divine judgment which is pronounced against sinners "according to the truth" . And thus, according to the judgment of the present life the death punishment is inflicted, not for every mortal sin, but only for such as inflict an irreparable harm, or again for such as contain some horrible deformity.

 It is, then, difficult to reconcile the claim that the death penalty is absolutely and universally contrary to human dignity with the Catholic faith.  For the Catholic faith affirms the justice of retributive penalty far exceeding any just terrestrial penalty, and has always acknowledged the principled legitimacy of the death penalty.  This is not to say that any grave penalty should lightly be imposed, nor that there may not be general reasons of prudential restraint--although as prudential these may vary, not least because deterrence is a valid further end of just penalty; but it is to say that grave penalty, including penalty of death for the gravest crimes, is not intrinsically evil or invalid.

Four Catholic Journals Indulge in Doctrinal Solipsism

Four Catholic journals--the National Catholic Register,  America, The National Catholic Reporter, and Our Sunday Visitor--have decided to press for the total abolition of the death penalty in the United States in a shared editorial, making only faintly veiled suggestions that it is essentially evil, "abhorrent".  Their joint editorial may be found, among other places, here. The editorial manifests a wondrously positivistic indifference to, and disregard for, distinctions in doctrine.  That all the Doctors and Fathers of the Church--with the exception of Tertullian who died outside the faith-- have taught the essential validity of capital punishment; and that it is the teaching of the Council of Trent that where all the Fathers and Doctors hold one interpretation of Scripture as the proper one, Catholics are to accept it, are two propositions that signify very little in the oppressive culture of mutationist accounts of doctrinal development.  

Wholly unobserved is the high theological note characterizing the profession required of the Waldensians in 1210 in order to re-establish ecclesial communion.  The Waldensians were required to acknowledge among other things the essential justice of the death penalty for grave crime.  Cf. Denzinger, #425—“Concerning secular power we declare that without mortal sin it is possible to exercise a judgment of blood as long as one proceeds to bring punishment not in hatred but in judgment, not incautiously but advisedly.”  Clearly to require this oath for the re-establishment of ecclesial communion at one moment, and then to imply the absolute necessity of the opposite—where what is at stake is not prudential application and limit but the principled possibility of just penalty of death—would constitute not a development of doctrine, but rather a mutation.  Note, again, that the oath required of the Waldensians directly refers to the death penalty in principle and that it indicates that as such it cannot be a malum in se. Nor is it listed as such in Evangelium Vitae, which provides a list of such intrinsic evils from which the death penalty is omitted. 

Are the editors of the journals involved--or the bishops who so commonly describe the death penalty as contrary to human dignity as though it were a malum in se--familiar with the work of the late Eminence Cardinal Avery Dulles on this question?  Or the teaching of the Fathers and Doctors of the Church?  Hundreds of years of Catholic teaching in conformity with the teaching of the Fathers and Doctors has acknowledged that implementing the penalty is a prudential matter and that the penalty is essentially valid.  Pope Piux XII taught that the penalty is valid across cultures.  The wisdom of applying this penalty is essentially a prudential matter.  But as prudential there is no such thing as "de facto abolition" since circumstances change, and--again, contrary to the journals and the new enthusiasm--deterrence is a necessary and essential part of criminal justice.  The reason for this last is that we are not free to impose penalties in this life without considering the common good, and an essential part of this consideration is (contrary to Kant who thought that the justice of the death penalty made its application to be absolutely necessary) the issue of deterrence.  The same place at different times may require different penalties; and different places at the same time may require different penalties.  Many penalties might be essentially just that in particular circumstances do not conduce to the common good and so ought not be applied. Thus it is altogether fitting that--given the overriding circumstance of the rejection of higher law and the widespread determining circumstance of the culture of death--there be a prudential reservation in applying this penalty.  But this is an entirely different thing from the joint editorial's barely concealed anathematization of the penalty, which itself proceeds from a failure to understand, and a lack of due theological regard for, the transcendence of the common good.  

The editorializing journals fail to understand that Evangelium Vitae does not reduce penalty to defense, but adverts to defense largely because of the failure of states to subject themselves to higher law and to acknowledge their subjection to the common good,  In the presence of the widespread circumstance of the failure of the penalty to manifest a transcendent norm of justice owing to the omnipresent culture of death, the other medicinal aspects of penalty--in particular deterrence (which includes keeping the particular criminal from killing again)--become even more important inasmuch as the major medicinal purpose of punishment (manifesting a transcendent norm of justice) is impeded. Yet the journals fail to acknowledge that deterrence is essential to criminal justice, a remarkable view simply contrary to Catholic tradition. But we are not free to impose penalty without care for the common good, and the consideration of deterrence is part of such care. Enthusiasm suppresses such distinctions. 

The journals use the language of "violence" to describe the penalty.  But just penalty does not "violate" the rights of the guilty.  And there is no absolute "right" of the guilty to immunity from justice for grave crime.  It may be better not to impose some penalties, and this is largely true of the death penalty today.  But contrary to the formulations of the journals in question it is precisely not a universal truth, nor is the penalty as such "abhorrent".  That is the language of the Waldensians, language which they were required to renounce to re-establish ecclesial communion with the Roman Catholic Church.  Those who embrace such language should realize that they are crossing over from the Church's prudential reservations regarding the penalty--which then-Cardinal Ratzinger as prefect of the CDF insisted that no Roman Catholic was obligated to share--toward assumption of the Waldensian view of the matter (prior to their return to the Church, that is).  

 Emeritus Pope Benedict the XVI, in a letter to the Cardinal McCarrick in 2004 when he was merely His Eminence Cardinal Ratzinger and prefect of the CDF, made it very clear that the death penalty was not an intrinsic evil and ought not be depicted as one. Indeed, he made clear that regarding the death penalty, questions of war and peace, and so on, laymen had a just claim to exercise their prudential judgment and that disagreement among Catholics on such issues ought not be compared to dissent on matters such as abortion and euthanasia.The letter of then-Cardinal Ratzinger may be found here.  To quote it:

"Not all moral issues have the same moral weight as abortion and euthanasia. For example, if a Catholic were to be at odds with the Holy Father on the application of capital punishment or on the decision to wage war, he would not for that reason be considered unworthy to present himself to receive Holy Communion. While the Church exhorts civil authorities to seek peace, not war, and to exercise discretion and mercy in imposing punishment on criminals, it may still be permissible to take up arms to repel an aggressor or to have recourse to capital punishment. There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."

One can understand how these points seem not to matter, however, in a doctrinal climate in which what matters is rhetorical posturing to catch progressive winds rather than doctrinal rectitude.  The journals take a general prudential inflection of the Church and, with an impatient spasm of imprudence, describe the penalty as an evil in itself--"abhorrent".  The seeming willingness of some in the Church to entertain any change that may be marketed as "progressive" is certainly a factor in the development of such an attitude. The market for mutationist views of doctrinal development--for the proposition that the Church can absolutely contradict what it has solemnly proclaimed as true, whether about contraception, or abortion, or capital punishment--is a growing market in the antinomian first world.

The difficult issue of the death penalty will remain with us, because penalties are determinationes, determinations of prudence in the light of the common good. The death penalty is not essentially unjust, and circumstances change.  The threat of Islamist terror was largely invisible at the time of the composition of Evangelium Vitae. It is not impossible that in the future the use of the penalty may be required.  Surely there is no warrant to be found in either the recorded words of Christ, or the teaching of the Fathers and Doctors, for the proposition that the death penalty is "abhorrent".  But then, these authoritative sources are seldom matter for Media Carnival and immediate popularity.  

Need one observe that the journals'  appeal for the US Supreme Court further to ignore the US Constitution will have further implications for the deterioration of our legal system?  The founders, who provide for the death penalty in the US Constitution, cannot coherently be thought to have promulgated in that document anything that could warrant the judgment that it is of its nature "abhorrent" or inconsistent with legal justice.  Thus the journals' insistence that the court once more ignore the Constitution seems to imply a memory lapse that normative reference to that document in its integrity is necessary to several ongoing legal cases of Catholic institutions attempting to preserve their just right to operate as such without being coerced to cooperate in triggering financing for essentially vicious action.  The four journals that published this editorial would have done better to join in a statement defending these endangered institutions.  Certainly urging the US Supreme Court toward further deconstruction of the US Constitution serves neither the just interests of the common good nor the evangelical mission and liberty of the Roman Catholic Church.  

The journals publishing the shared editorial achieve an apotheosis of that special mix of enthusiasm, ignorance of doctrine, distinerest in distinction, and willingness to speak with "abhorrent" rhetoric to prove their wholeheartedness, which are part of the legacy of the sixties.  When in doubt, always amp up the rhetoric and suggest that those who differ with you are guilty of being bloodthirsty.  That is the true path of dialogue.  "All we are saying, is give doctrinal antinomianism a chance."  But: it has had its destructive chance, and we are still reeling from the damage.  The misbegotten application of categories of speech appropriate in regard to the murder of innocents to the vastly different application of just penalty for grave evil, is symptomatic of a society that can garner more support to spare the guilty than to save the innocent.  The crowd still wants Barrabas.

Garrigou-Lagrange & Leibnitz?

Thomas Osborne in an earlier post (Oct. 25, 2013) regarding Garrigou-Lagrange and Africanus Spir raises interesting questions regarding the relation of Garrigou-Lagrange and Leibnitz.  This calls to mind Gilson's imputations about GL's thought--the slur of a Wolff-like rationalism in GL kindred with the thought of Leibnitz.  These suggestions of Gilson appear to be founded in political animosity (of the kind depicted by Shook in his biography of Gilson), not in any genuine correspondence of doctrine between GL and Leibnitz. GL expressly argues--with Thomas--against the view that there is a "best of all possible worlds"; against the view that all truths are analytic in the sense that they would be (as they are for Leibnitz) genuine entailments of the divine essence such that all created reality in its particularity could be deductively drawn from the vision of God. GL expressly says that sufficient reason is "analytic" only in the sense that it may be defended by an indirect demonstration or reductio ad absurdum. What can one say? There is only the word "analytic" between them, no common teaching. Moreover, Thomas does say, e.g., in Book II, Chapter 15 of the Summa contra gentiles, that “that which has no cause is something first and immediate; hence it is necessary that it be by reason of itself and in consequence of what it is” (“Quod causam non habet, primum et immediatum est; unde necesse est ut sit per se et secundum quod ipsum.”) This is an analogical not univocal principle of sufficient reason.  One recalls that Humani Generis also refers to sufficient reason, clearly not designating by that language the doctrine of Leibnitz.

The argument against Hume is actually quite interesting. It is that every real relation requires a foundation in the real, because a non-existent foundation cannot sustain a real relation. This is per se nota. So, for a thing to be related to existence, there must be some real foundation for that relation either in the thing or outside the thing.  Without such a foundation, the thing is not related since relation as such requires foundation. Thus when Hume says that a thing can come into being--and thus have a relation to existence--but that nonetheless it is neither its own reason for being nor is there a reason for being outside itself, he is saying that there is a thing that has a real relation to existence and does not have a real relation to existence.  This is because for Hume nothing about it relates it to existence since the foundation of the relation is neither in it nor is it outside it, which is simply to say that there is no foundation whatsoever for such a relation.  GL expressly deals with the claim that this is simply a petitio principii in explaining it as an indirect argument.  His argument against Hume amounts to saying that nonbeing is not the foundation for a relation to existence--which is evident--and that since real foundation is required for the claim for real relation, this means that a thing cannot intelligibly be affirmed to have a real relation to existence if it is neither its own reason for being nor is there a reason for being extrinsic to it.  

A similar but in some ways simpler way to respond to Hume is simply to observe Hume's failure to distinguish real and conceptual possibility.  That something may be conceived or even only imagined does not suffice to indicate that it is really possible:  the latter requires real evidence.  What is not in the premises cannot be in the conclusion.  So, if we are to conclude to real possibility, we must do so from real evidence.  Now, when it is said something could come from nothing without any cause, one wishes then to know what the real evidence is for this proposition.  But it is impossible that there be real evidence for this proposition: because one could never really distinguish between a thing having no real cause for being, and its having one of which one were merely contingently ignorant.  Since there could never then be real evidence that something coming from nothing without a cause is really possible, the proposition that it is really possible for something to come from nothing without a cause is one that there could never be a reason to hold:  a point analogous to GL's observation that where there is no foundation for a claim of real relation to existence such a claim is an absurd impossibility.  It is, as it were, a bad cognitive check, more pathology than proposition.  But this, too, is an indirect argument or demonstration.

The Unthinkability of Compliance

Dr. Janet Smith, with whose work every Catholic interested in moral theology and philosophy has good reason to be familiar, has recently arguedthat cooperation with the HHS mandate is either remote or at worst mediate material cooperation with evil rather than formal cooperation.  In doing so, she proceeds—as does much analysis—along the lines of St. Alphonsus Ligouri, who defines material cooperation as “that cooperation which concurs only with the bad action of the other, outside the intention of the cooperator.”  If we mean by this intention of the end, certainly this is one way of committing formal cooperation with evil, but not the only way—one recollects here the very lucid arguments of Dr. Michael Pakaluk on this point—because the object of the moral act must also be good and if it is not the act is evil.  Formulations about intention leave one yet with a great measure of ambiguity, precisely because “intention” is an analogical term (it principally refers to the act of the will with respect to the end, but refers also and secondarily—owing to the prior causal role of the intention of the end—to the intention of the object, and in a third sense even to the intention of any part of the motion toward the end).  

But certainly there remains the need for the nature of the object of one’s act to be good, since if the object is evil the act is evil. Thomas Aquinas teaches that for the moral act to be good it must not only have a good end, but a good object (and, for that matter, good circumstances), and if the object is morally evil, then the act is morally evil.  So, the insistence that if only the cooperator does not intend the same end as the wrongdoer he is not guilty of formal cooperation with evil, implicitly treats the object of moral action as inessential to action.  But, to the contrary, St. Thomas Aquinas unequivocally teaches that the object is essential to the moral act, and that if it is evil the action is evil. 

So: if one contracts to provide insurance covering a basket of services, knowing that included among these “services” are grave evils, in what sense is one not contracting for them?  Of course, coercion is involved.  But while coercion can limit or even remove culpability, it does not change the object of the coerced action as such.  I may be told that unless I murder some innocent party, my child will be murdered; but if I proceed to murder that innocent “someone” my culpability may be reduced by the coercion, but the object of the act is still wrongful homicide.  The question is not whether employers are being wrongfully coerced by the state, as it is manifest that they are.  The question is, may one offer insurance coverage for vice because one is being threatened otherwise with the loss of the ability to offer health insurance legally?  After all, one presumes that the Catholic institution or party offering the insurance “doesn’t want to” offer coverage for vicious action, and “doesn’t intend”—as an end—that vicious action.  If it were true that formal cooperation existed if and only if one intended the same grave evil as that being pursued by the evildoer with whom one was cooperating, then to lack that intention of the end would necessarily imply that one were not formally cooperating. However, this entirely misses the formality of choice and the essential importance of determining the nature of the object of choice.  I may not intend something as an end, but still may choose it as object for the sake of the end.  If what is chosen is gravely evil, what ensues is a gravely evil action.

What is being argued today is largely that since the Catholic institution only intends providing genuine health insurance as an end, and the mandatory extension of this insurance to vice is not willed as an end by the Catholic institution, it is free to choose to offer an insurance package that covers vicious activities.  I say “choose” because although it is under duress, the Catholic institution/employer is still free not to offer benefits at all.  And as a matter of unequivocal fact it is the whole package of “services” that the Catholic institution provides access to by providing insurance coverage not only for health services but for vice.  It is not only those services that are genuinely ordered to healthcare, but also those that are ordered to abortifacient contraception, to which the insurance provided by the institution gives access.  This is a matter of fact.  These will be made available through the employer’s health insurance if and only if the employer’s health insurance covers them; and if the employer offers no health insurance, this means that the employer will not make the access to the vicious pseudo-services available through its insurance policy.  So:  may the Catholic institution/employer offer insurance coverage for health care together with insurance coverage for vice?  

If the government mandated that at Halloween mothers must provide one piece of rat poison or one candy bar with a razor blade inside for every three normal pieces of candy, could the mother reason that she is under coercion, and then provide the candy combined with the poison?  Would that be only mediate or remote material cooperation?  No, because although (hypothetically) she would not will the eating of the poisoned candy as an end, she would nonetheless—under coercion—have chosen to provide it rather than to cease giving candy altogether. 

The form of the choice offered to Catholic institutions essentially presents the option of choosing to cooperate—to offer insurance coverage for vice—as a condition for state permission to offer health care.  But it is immoral to provide insurance coverage for vice.  Period.  It is something that no one should do.  This is the nature of grave evil, to be something that no one should do.  That one ought not to do it is not determined by the Obama administration, nor by HHS; it is determined by the eternal law.  Providing insurance to cover vicious activity is an evil; providing access to gravely vicious activity is gravely evil, and one way that one provides access to such activity is to cover it with insurance.  Clearly this should not be done.  Any institution that cooperates in providing such insurance coverage is indeed cooperating in providing access to gravely vicious activity.  

The HHS case is different from that of driving a bank robber to rob a bank, because merely driving the robber to a bank is not specified by the robbery but only by access to the bank.  But providing insurance for grave vice, is to set up the means specifically to pursue grave vice:  so much so that the insurance policy contains this in its very letter. That is evil.  It is not accidental to the provision of insurance coverage expressly for vice that the insurance coverage provides access to: vice.  The choice to provide such coverage—even if the alternative is to provide no coverage for health insurance—is an evil choice.

The similar case would be agreeing to arrange “insurance” that covers the provision of “murder services” as a condition for being permitted to continue arranging insurance covering health care (lest one forget that abortifacients are instruments of wrongful homicide).  But one comes to full stop:  one may not agree to arrange “insurance” that covers wrongful homicide (coercion or no).  Therefore, any basket of “services” that offers this cannot be offered.  To say that “the benefits of compliance outweigh the cost” is to treat the good of the human life whose extinction one arranges to have funded by insurance a mere deficient utility compared with the cost of insurance.

Not focusing on the nature of choice, the insistence on material cooperation focuses only on intention of the end.  But when the object chosen is gravely wrong, the action is gravely wrong, irrespective the goodness of intention.  Nor does coercion change anything but the culpability of the agents.   Both the intention of the end, and the choice of the means, must be sound:  both the end and the object of the action must be good.  But it is not good to provide an insurance policy covering both genuine health needs and vicious activity.  

In Smith’s analysis, the example of “bundled” evil is given:

The example of buying groceries from a grocery store owned by an abortionist serves here as well. Some of the money we paid for cheerios might go to pay for advertising the abortion clinic but since we do not intend at all to fund abortions and since the amount of the money that goes to abortion is negligible, our shopping at the store is morally permissible.

However, in comparison to the present case, this illustration of bundling seems—and is—trivial.  The example is one of very remote material cooperation.  For all the reasons already stated, the case of the HHS mandate is a vastly different case.

Lastly, resistance to the HHS mandate is absolutely morally required, because the HHS mandate presumes unilaterally to direct Church institutions to immoral uses, to force the Church to become gravely complicit in scandal, and wholly to invert the sacred purpose that renders Catholic institutions to be Catholic institutions.  This is to say that the HHS mandate, mandates a defacing of the Church, a sacrilegious inversion of the purposes that make juridically Catholic institutions be Catholic.  For these reasons alone, it is simply impossible for any good Catholic to cooperate with the mandate at the moment when it becomes fully effective.  The HHS mandate is insufficient in reason and law to command any well-formed conscience.  Of course, it is wrong for Catholic employers as individuals—and indeed, it is wrong for any individual employer who in conscience understands the grave evil of abortifacient contraception—to cooperate with the mandate.  But the truth is that the HHS mandate is war on the Church.  Thus to be discussing institutional compliance as a plausible option is, to this author’s mind, imprudent and dangerous.  One does not cooperate with those who seek to move one through coercion to provide access to vice and to harm the Church.  The calendar of the saints is filled with illustrations of the price—and the glory—that this may exact from the conflicted human creature in via… Moral theologians and philosophers must traverse a wide array of difficult and even exotic questions.  But the gravitational center of the Catholic response to the HHS Mandate should consist of one immutable syllable:  “no”.

Formal and Material Cooperation: Once More into the Breach

Perhaps the determining element in the question whether institutional cooperation with the HHS Mandate is formal or material consists in the answer to the question whether an institutional choice to provide a basket of services including a malum, implies an institutional choice of that malum.  From the vantage of the individual opposed to contraception the answer can be simple:  no, because the individual is simply trying to obtain a licit service and being extorted.  But there is no prima facie legal or moral obligation for an institution to provide health insurance.  Thus, to choose to provide health insurance with malum, is not only materially to include the malum, but to choose to obtain it and to make it obtainable by others.  The malum is like an integer added to a sum:  it is included in the object of choice as something one is contracting to provide; it is as formal as the presence of a musical note in a musical composition, which would indeed be a different composition without that note, even though as merely a “part” of the composition that note is “material”.  Hence, while “material” in relation to the whole ensemble—as is every “part” qua “part”—it is formal with respect to the choice to provide it.  I.e., contracting to provide an evil is not merely material inasmuch as the evil is every bit as essential to the basket of items contracted for as all the other constituents, even though the institution might prefer not to choose it.  If one views goodness as from total causes, then the addition of one element that is wrong destroys the action.  Of course, one might say that it is evil to comply, but only because it is a more proximate material cooperation that is still material.  However (assuming a Catholic institution), the end for the sake of which the institute acts is health care; but it does this by formally choosing something that is not choiceworthy.  That the malum is only materially included does not change the datum that it is essentially included (and this is the heart of the difficulty:  to be merely material in the object does not keep something from being essential to the object).  Now, it could be merely material cooperation if the purchase of the evil “service” were per se ordained to a good.  But there is nothing about provision of access to abortifacient contraception that is of itself per se ordered to the provision of health care.  Thus, the relation between providing contraceptive “services” and providing health care is per accidens, and so one is doing two things, not one, with two species, not one:  one is providing access to vice, and one is providing access to health care.  These two acts have different species.  Acts are specified by their objects.  So, one is faced with buying an evil service.  How bad is that?  Well, how bad is the service?  It is a service to help people contracept, often killing conceived children.  It might be argued from the vantage of the institutional intention to provide health care, that the malum of providing access to evil is treated as a means although it isn’t one:  i.e., “if we are to provide health care, we can only do it by also consenting to provide access to abortifacient contraception; so we must provide access to the latter in order to do the former.”  It is not that the abortifacient contraception or its provision is naturally of itself the means for health care (if it were, the species from the intention of providing health care would be most formal and containing) but rather that only by consenting to the provision of contraceptives may one provide what one wants to provide, so that this consent to provide abortifacient contraception is in this way a chosen condition of pursuing one’s intention.  But, to reiterate, here too one sees that there is a per accidens order, with two species:  providing health care, and providing access to vice.  But the act of choosing to provide access to vice, i.e., contraceptive “services,” is not choiceworthy.  Of course, it is true that those who consider the cooperation to be proximate material cooperation concur in this judgment.  But it is important to realize that what is only materially present in the object may still be essential and therefore constitute formal cooperation.  Granted that what is most formal in the hypothetic cooperative action of the Catholic institution is its effort to provide access to health care, it must still choose something that is not choiceworthy in order to proceed, and ought not to do this. Would it be “even more formal” cooperation did the institution positively seek to provide the malum?  Yes.  But insofar as the institution chooses a package with a gravely evil constituent, irrespective the intention, it is formally in choice embracing that constituent which is deliberately chosen along with the rest, and that includes its nature and per se effects.  Of course, when one considers that formally and juridically Catholic institutions are being commanded to give scandal as a condition for obtaining health care—and that the analogously sacred missio the pursuit of which defines such institutions would thus be sacrilegiously perverted by a unilateral act of the state—it is all the clearer that cooperation is absolutely impossible.

The Dubious Guidance of the New Natural Law Theorists on "Formal Cooperation"

Christopher Tollefsen argues as follows regarding the issue of formal cooperation:

As Sherif Girgis and Robert P. George have explained, formal cooperation involves acts that assist another in wrongdoing, in which the intention of the one providing assistance is precisely to further the wrongful aims of the primary agent. If I provide you with contraceptives in order to enable you to contracept, then I am formally cooperating with you. Formal cooperation is not guaranteed by inevitability: I might know to a certainty that you will misuse some resource or aid I give you. But unless I provide the aid for the sake of so enabling you, then I do not share in your bad intention.

Where the HHS mandate is concerned, there should be little doubt that formal cooperation is not at issue. If the president of a Catholic college is compelled to offer the coverage and complies, it will not be done for the sake of enabling his employers to contracept, but for the sake of complying with a legally authoritative, even if unjust, policy. Accordingly, the form of cooperation at stake is material, not formal.

Alas, this is an aperçu that wasn’t, because the definition of formal cooperation is incorrect.  The definition provided implies that only if the cooperator “intends” to bring about the evil involved is the cooperation formal. But “intent” is being used in a peculiar fashion, to denote only what makes the act desirable to the agent and to positively exclude the integral nature and per se effects of that which is chosen. Note how easy this makes avoiding formal cooperation:  one may do anything whatsoever provided that one wishes one weren’t doing it.  But the integral nature and per se effects of action are always included in the moral object, contrary to those for whom the object of moral action is merely what makes that action appetible to the agent.  This is because we choose actions and not merely the formal aspect under which the action is desirable to us—not merely the ratio of the appetibility of an action—but also the action itself.  The one who murders “wishing” he were not, but nonetheless choosing to do so, has a conflicted conscience, but is a murderer.  The one who offers to provide mass support for the pursuit of sinful actions, while wishing he were not aiding sinful actions, is still “directly” providing such support:  “directness” is not a function merely of how one describes one’s proposal for action, but includes the action itself, its integral nature, and per se effects.  So, perhaps the reason why someone performs formal cooperation with evil is not because he wishes the evil to be done, but for some other reason:  but it is wrong to do.  It is wrong to provide mass access to things that one knows are principally sought after for gravely immoral purpose, and the wrongness is formal because providing such access is in essential part defined by its causal implication in depravity and the agent is choosing this causal implication irrespective what he “wishes”.  The case is similar with respect to the performance of action generally. For instance, perhaps someone crushes an infant’s skull to remove it from the birth canal and save the mother, and not because one wishes to hurt the child:  but this is wrongful homicide and not a medical act, because the act terminates in the child—in such a way as to hurt and kill the child—and not in the putative patient, the mother.  Irrespective that the agent “only wishes to help the mother” what the agent is doing is murdering a child.  Roman Catholics who wish serious guidance about these matters should reflect that the George/Gigris account is deriving from a theory that countenances the crushing of infant skulls in craniotomy, and that is deeply implicated in the recent abortion (as witness the Lysaught brief defending the hospital) for which the former St. Joseph’s Catholic Hospital has rightly lost its Catholic status.  It is wonderful that gifted men of affairs and lawyers are willing to defend the rights of Catholic believers in the public forum.  But inasmuch as some of these persons are wedded to a theory in critical contradiction with important elements of the actual moral tradition of the Church—a tradition centrally related to the teaching of St. Thomas Aquinas—the long-term benefit is dubious.  This begins to be seen in the misportrayal of the Church’s teaching regarding material and formal cooperation, which the NNLT—wedded to a purely logicist insistence on the content of a proposal for action rather than a realist account such as is found in the teaching of Aquinas—cannot help but get wrong, having gotten wrong the analysis of human action in general.  The chickens of the NNLT are beginning to come home to roost:  NNLT chicken roosting is an emerging bull market.