March 2014 Print

Navigating the Dangers of Scylla and Charybdis During the Crisis in Civil Society Legal Justice

by Brian McCall

Traditional Catholics have been struggling to carry one of the unique crosses of our time of crisis. Catholics responding to one of the deepest and severest crises to rock the bark of Peter must avoid jumping ship and unilaterally declaring the pilot’s seat empty at the same time that they must avoid rowing in the direction of so many of their superiors, a direction running straight into the tsunami of Counciliar novelties. Thus, many Traditional Catholics are keenly aware of avoiding both points of excess: the abandonment of authority by the Sedevacantists and the embrace of novelty through irrational obedience by those groups which have compromised with the Modernists.

There is an old saying: As goes the Church so goes the world. Since the Church is the soul of the body politic, or civil society, if the soul is sick or disoriented, the body will be likewise affected. History is replete with examples of the state of the Church, good or bad, being reflected in the state of civil society. It is no surprise then that the devastating crisis of Faith that pervades the Church of recent decades is reflected in a crisis of civil, and particularly political, society. All one need do is read the newspaper to see daily evidence of all aspects of civil life spiraling toward dissolution: political, economic, legal, cultural, educational and social. Laws against nature are enacted regularly, whether they be to harbor or promote abortion or confer the benefits of marriage on those incapable of entering into this sacred bond. Yet, as Catholics attempting to live up to our obligations we face countervailing dangers when confronting the crisis of civil society. As with our response to the crisis in the Church, our response must be rooted in the proper understanding of Catholic virtue, which avoids both extremes.

To understand our obligations towards civil society we must briefly discuss the virtue which regulates our exterior acts, Justice. Justice is the virtue whereby we possess a constant and perpetual will to render to others their due.1 As Men can have three different types of relationship and interaction, the virtue can be considered in three contexts or particular forms of Justice. (1) Men can interact directly one with another (as in buying and selling goods), and these types of external acts must be ruled by commutative justice, which requires equity in such personal exchange transactions. (2) As a social being, Man also interacts with other Men mediated through society. One form of Justice must regulate the relationship of that society to the individual Men comprising it. This particular form of Justice is distributive, and it requires that common goods be distributed among the members of a society proportionately according to merit. (3) The final type of justice regulates the relationship of the individual towards the society of which he is a part. It is this third type of Justice, legal, which must guide our balanced reaction to the crisis in civil society.

St. Thomas speaks about legal justice as having two purposes. It is the virtue which directs us to obey the law and the virtue that ordains the exercise of the other virtues to the common good of society.2 By examining both of these aspects we can gain a deeper understanding of our proper response to a society mired in injustice. There is an “essential connection between legal justice and law.”3 One of the key aspects of St. Thomas’s definition of law is that it must be ordained to the common good.4 Laws are made to make determinations of Natural Law applicable to particular circumstances in a society. Those vested with legal and political authority bear the burden of making these determinations in the form of laws so as to coordinate all individuals in the pursuit of the common good. Obedience to human laws is the usual method by which we order our individually virtuous action to, and harmonize them with, the common good. Thus, legal justice is the virtue by which we maintain a constant and perpetual will to obey the law. Yet, unlike modern Men who have been drunk on the illusion of Legal Positivism for centuries, St. Thomas, and the Catholic Tradition he embodies, understands the term “law” in a much deeper and broader sense. Although human laws are generally our first point of contact (in the order of knowledge), they do not exhaust the genus of law. Human laws to be binding in conscience must derive their authority from the higher forms of law, the Natural and Divine Law and ultimately the Eternal Law.5 A purported human law which is contrary to these higher laws is in fact no law at all but rather a violation of law.6 When St. Thomas explains that one aspect of legal justice is that it orients us to obey the law, he means law in its complete sense.7 Modern Men who speak of obedience to law speak only to that part of the law composed of human laws which they have amputated from the higher law that gives them life. Thus, legal justice is the virtue by which we obey all the laws God has envisioned for us, from Eternal Law all the way down to human. In a good society, doing so will entail no conflict because all of the laws will conform to and in fact be derived from the Natural or the Divine Law. Much as Catholics living in the late nineteenth or early twentieth centuries could simply follow the advice and statements of the reigning Pontiffs to conform to Catholic truth and praxis, in well-functioning societies they can simply obey the particular human laws on the books. Yet, as in the time of ecclesiastical crisis the latest interview of the Supreme Pontiff may not be a safe guide to Catholic truth, so too in a civil society in crisis the latest enacted laws may not be a sure guide to obeying the law. The virtue of legal justice guides our discernment of what the law, in its fullest sense, requires of us so that we can obey the law. In times of crisis, legal justice demands we refuse to conform to unjust human laws in order to obey the law in the fullest sense of the term.

Yet, as St. Thomas’s teaching indicates, mere obedience to the law is only part of the virtue of legal justice. More generally, it orders our individual acts to the common good. All members of a society are obligated to work for the common good. What this obligation entails in practice will vary greatly depending on abilities, talents, resources, and the obligations of our station in life. Yet, at a minimum it requires that we desire the common good of our society, which precludes a complete rejection in principle of life in an ordered society governed by political authority. This obligation involves avoiding the same twofold danger as in the context of the Church.

We cannot simply throw ourselves into the spirit of the secular age and make peace with the enemies of the Kingship of Christ who wield the levers of power. We cannot support or accept the decomposition of society represented by the promotion of abortion, sodomy, contraception, liberal indoctrination called education, and cultural obscenity. We cannot participate in government if such participation constitutes a formal cooperation with evil.

Yet, as with the crisis in the Church, legal justice precludes a rejection of the good of political authority in principle even when legal justice requires we disobey the unjust actions of those currently holding political authority in our society. The crisis in civil society may be so great that all of the candidates standing for a political office would likely accomplish a disproportionate evil to any good they might achieve, which would preclude our voting for any candidates. Yet, such refusal can never be construed in our own mind or in our external behavior as a rejection of participation in the political life of our community on principle. Voting—if a legitimate aspect of our customary form of government—is not intrinsically evil. Political and legal authority is a good established by God to perfect our social nature. God’s plan for authority is revealed in the first moments of creation when He establishes Adam as the authority among the first human community. The making of just laws and our participation in that process (to the extent consistent with the particular form of government customary in our particular nation) is oriented to the common good and demands our participation, to the extent consistent with our station in life. If we must absent ourselves from most or all of the aspects of political life due to its great corruption today, we must not translate this into a rejection of political life in principle. We must be careful to identify ways in which we can work for the common good even if quite limited. It may involve participation in local elections. In towns in which traditional Catholics constitute a substantial percentage of the population the opportunity to work for the common good of the local community is likely more feasible. Traditional Catholics should not absent themselves in this case in the vein of a liberal philosophy (be it libertarian or anarchist). At a minimum we should maintain an appropriate respect for the offices of authority even if those offices are sullied by unfit holders at present, and we should always pray sincerely for those holding any office of civil authority—in particular, we should pray that their minds and wills be moved to work for the establishment of the Kingdom of Christ.

To absent ourselves completely and on principle acts as a practical rejection of the doctrine of the Social Reign of Christ the King. Ironically, Traditional Catholics who reject any obligation to work for the common good of the societies in which they live act no differently from Modernist Catholics who pay mild lip service to the doctrine of the Social Reign of Christ the King but reject the doctrine in practice. This attitude, exemplified by the transferal of the Feast of Christ the King to the last Sunday of the Liturgical Year, expresses the understanding that the doctrine is of no importance to us here and now. The Reign of Christ the King is only relevant to some far off time and place, the end of time. Traditional Catholics may display more external piety on the traditional date of the Feast, the last Sunday of October, than their Novus Ordo counterparts, but if they act as if working for the establishment of the Reign of Christ the King has no practical claim on their lives throughout the year then they agree in praxis with the Modernists and relegate the doctrine to pious sentiments.

The ultimate restoration of civil society, as with the Church, will only be accomplished by the omnipotent power of Divine Providence. Yet, as with the crisis in the Church, Our Lord wills our participation in this restoration. We must do our part even if that only means the lifting up of our mind and heart to this intention in prayer.

Man’s supernatural and natural ends require two perfect communities, the Church and the Civil Society. Our nature demands an ordered authority to govern each. When this ordered authority is in crisis the time is “out of joint,” to use Shakespeare’s phrase. In both spheres two great dangers present themselves to one navigating to his natural and supernatural ends. One danger represents a blind obedience to corrupt authority, reconciliation with the crisis and its corruptions. The other danger involves a total rejection of God’s design. In a desire to guard against giving into the spirit of novelty one simply secedes from the Church or political life, crashing into an atomized individualism contrary to nature. Legal justice points the way through both perilous paths, avoiding imbibing the dangerous spirit of the age while skirting the temptation to reject our social nature.

Note: This article is based on a conference given to the students of St. Mary’s College, and, Notre Dame La Salette Boys Academy in September 2013.

Brian M. McCall is Associate Dean for Academics and the Orpha and Maurice Merrill Professor in Law at the University of Oklahoma College of Law and in 2014 is a Visiting Professor of Law at Notre Dame Law School. He has received degrees from Yale, the University of London and the University of Pennsylvania. He is married and has six children, and serves as the coordinator of the SSPX chapel in Oklahoma City.

1 See St. Thomas Aquinas, Summa Theologica, II-II, q. 57.

2 For a summary of the doctrine of St. Thomas on this matter see Jeremiah Newman, Foundations of Justice: Historico-critical Study in Thomism (Cork: Cork University, 1954), pp. 2-3.

3 Ibid., p. 6.

4 ST, I-II, q. 90, arts. 2 and 4.

5 ST, I-II, q. 95, art. 2.

6 See ST, I-II, q. 95, art. 4.

7 Newman, Foundations of Justice, pp. 10, 12, and 13.