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The blog of the Dominican student brothers at Blackfriars, Oxford.

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Natural Law and the Government's Laws

Wednesday, February 03, 2010
"Your country is well known for its firm commitment to equality of opportunity for all members of society. Yet as you have rightly pointed out, the effect of some of the legislation designed to achieve this goal has been to impose unjust limitations on the freedom of religious communities to act in accordance with their beliefs. In some respects it actually violates the natural law upon which the equality of all human beings is grounded and by which it is guaranteed."

Background to the Pope's address

Westminster Palace ablaze with lightThe above is just one paragraph of an address delivered by Pope Benedict XVI to the Bishops of England and Wales on 1 February 2010 at the close of their regular five-yearly visit to Rome. What the Pope says is in response to various reports that the bishops give him in which they outline the strengths and challenges facing the Church in England and Wales. But this paragraph has been highlighted by the media because it seems to comment quite directly on the Equality Bill currently going through Parliament. In addition, it also seems to be a comment on the Sexual Orientation Regulations that came into effect last month, which compels adoption agencies to facilitate the adoption of children by homosexual couples. According to Harriet Harman MP, the Minster for Women and Equality, the Equality Bill currently being debated aims to "tackle inequality and root out discrimination". The Church is not opposed to such goals and so the Bishops' Conference have said that they "welcomed the extension of protection to religious believers and measures to combat unjust discrimination against human beings, each of whom is made in the image of God."

Problems with the Equality Bill and the Ideology of Equality

However, some of the measures proposed by the Equality Bill would unjustly discriminate against the Church and threaten her freedom and integrity as a community living out the Catholic faith. The proposed law largely concerns the Church as an employer, and those classed as employees include Catholic school teachers, parish staff, diocesan youth officers and even priests. To be more precise, the job opportunities in question must be a public role of some significance, so we are not thinking of an atheist cook in a Church-run conference centre or a Buddhist gardener in a seminary. Much attention has been focused on Government proposals to extend equal opportunities under employment law to homosexuals, thus making it impossible for the Church to choose not to hire a homosexual who did not live according to the teachings which the Church proclaims in fidelity to Jesus Christ. In such a case, the issue is not that the person is a homosexual per se. After all, the Catechism states that "every sign of unjust discrimination in their regard should be avoided." Rather, the problem is that the hypothetical homosexual person does not even try to live according to the Church's teaching regarding homosexuals, and indeed might have a scandalous disregard for the teachings of Christ in this area. Moreover, the same equality laws might also disallow the Church from excluding women from the Catholic priesthood, and militant atheists might well be employed as Heads of Catholic schools. The former would contravene Church law and Catholic belief, and the latter must at the very least present a conflict of interest, if not a downright contradiction that is tantamount to a breach of the Trade Description Act!

Every organization, including the Government, expects certain standards from their employees so that they are fit for their job. Presumably the Labour party would not admit an active Tory nor give the job of Chief Whip to a Liberal Democrat or member of the BNP. Neither would the BBC hire a blind man to operate a television camera nor drive its crew around town in a van. Would Marks & Spencer be expected to hire and retain a manager who publicly denounced the company's products and told customers to take their business to Primark? The Government proposal is thus poorly phrased, for in its obsession with an ideological equality it does not appear to show enough prudence, as the Catechism implicitly does, to distinguish between just and unjust discrimination. For the latter is rightly to be rooted out, but the former is sometimes necessary to maintain the integrity of an organization and to ensure fitness for the job, as the above cases illustrate. The hypothetical situations that might face the Church may be somewhat unlikely, but these potential problems are raised by the Church to test the feasibility of proposed legislation and to help Parliament to tighten and improve the Equality Bill so that those who need protection under the Law are rightly protected but without detriment to the common good, nor indeed, to common sense.

As the Bill proposed by Harriet Harman stood, there was a real risk of the Catholic Church being unjustly forced to act against her conscience and legitimate beliefs, but on 25 January, the House of Lords recognized this difficulty and voted to maintain the status quo. As Baroness O'Cathain said: "Organisations that are based on deeply held beliefs must be free to choose their staff on the basis of whether they share those beliefs". However, there is still a chance that the Government will subsequently overturn the Lords' decision. It is in the light of all this that the Pope (echoing Baroness O'Cathain) noted that the Equality Bill (and similar ideologically-charged legislation) imposed "unjust limitations on the freedom of religious communities to act in accordance with their beliefs". These laws are said to be unjust because they could effectively prevent religious communities from acting in a way that would safeguard their beliefs with integrity, thus violating a fundamental human right to religious freedom.

Human Rights and Equality are founded on Natural Law

In the eyes of the secular media, the Pope's address has been seen as an assault on what Western society holds dear - tolerance, non-discrimination and fairness. These values lie at the heart of the Equality Bill, and Harriet Harman argues that "equality is ... right in principle" and "fairness is the foundation for individual rights". But why is equality "right in principle"? What causes human beings to be equal in dignity? The 1948 Universal Declaration of Human Rights says that "all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood." Equality, liberty and fraternity: are these not the hallmarks of our enlightened Western society? But where do these ideas come from and who guarantees them? Is it the State? If so, then human rights are simply a kind of positive law which could change according to circumstance and political exigencies. There is already this risk of reducing human rights to what the State or democratic society is willing to grant. Thus, the unborn and the terminally ill and aged are defined as non-human and not protected by the law: they have no human rights since they are not considered human. Every tyrannical regime does the same thing: they de-humanize a group, strips them of human dignity and then consequently denies them fundamental human rights. Yet, the fact that we can say, for example, that the Nazis who enacted positive laws violated human rights, means that ultimately we recognize that human rights are not just a matter of positive law but transcend politics and the positive laws of the State.

Thus, human rights are founded on something in our very nature as human beings. As Raymond Plant put it, human rights are "rights which we bear in respect of our specific human capacities, rather than as a member of this nation or this culture rather than that". In other words, human rights are firmly rooted in natural law, i.e., the very nature of human beings as creatures endowed by God with reason and conscience. This idea is implicit in the UN's Declaration and it is evident in the UN’s Palais des Nations in Geneva which employs Biblical texts and Christian imagery in its architecture, thus underlining the link between Christianity and human rights, like the link of a mother to her child. This is not to say that the idea of natural law is intrinsically Christian. In fact, it goes back to the Greeks who distinguished between human laws (positive law) and a higher law of nature according to which we are made (natural law). Thus Aristotle said that "what is natural has the same validity everywhere alike", and Cicero said that "what is right and true is also eternal, and does not begin or end with written statutes".

So, the Church, in affirming the universal and innate nature of human rights, says that "the ultimate source of human rights is not found in the mere will of human beings, [nor] in the reality of the State, [nor] in public powers, but in man himself and in God his creator". Slurs are often made against Joseph Ratzinger for having lived under the Nazi regime but those who are sensible realize that this man knows first hand what it is to have lived under an atheistic government. He knows that human rights are "incomprehensible without the presupposition that Man [by the simple reason of his being human] is the subject of rights" that are "discovered but not invented" by the State.

An example from the history of jurisprudence may serve to illustrate this point. In the 16th century, the Spanish Dominican friar, Francisco de Vitoria, observed the injustice being done in Latin America. The indigenous were being enslaved and exploited on the basis that they were uncivilized or even non-human. As yet, there was no firm concept of international law, and States effectively did as they pleased and plundered the Americas. De Vitoria, who is often considered the founder of international law, held that "the law of nations was a direct derivation of natural law”, and his juridical genius was to place human rights on a universal, fundamentally human level that transcended states and cultures. Human rights thus acquired the force of moral law on an international scale and these took precedence over the positive law of the State. In effect, this notion of human rights is what we have inherited today, and it is rooted in the dignity of humankind as created in the image of God, and thus in our equality as children of God the Father. Therefore, St Thomas Aquinas saw natural law as a "participation" in eternal law. This is to say that human nature, because it has the powers of reason and conscience, shares or participates in God's being. So, when we encounter another human person, we encounter God and we ought to give him or her due respect and honour. Thus, Christ said that when we love our brothers and sisters, we are loving Him, God. Seen in the light of natural law and the Christian faith, then, Harriet Harman's Bill does not go far enough. We ought not just to tolerate the other, or just give the other legally-enforced fairness. No, the Christian Law is the Law of Love, which means that we actively seek the eternal good of the other, loving the neighbour as we love God and as we love ourselves.


Violating the Natural Law?

Therefore, it is in this tradition, and with these ideas of the natural law that Pope Benedict made his critique. As we have seen, natural law was seen as a higher law than positive law. Hence, Cicero stated that "in the very definition of the term 'law' there inheres the idea and principle of choosing what is just and true ... Therefore Law is the distinction between things just and unjust, made in agreement with that primal and most ancient of all things, Nature; and in conformity to Nature's standard are framed those human laws which inflict punishment upon the wicked but defend and protect the good."

We have noted how the Equality Bill does not know how to distinguish between the just and unjust, and although it has a concept of human rights and equality, it values these in isolation, divorced from any understanding of the natural law. And it does this because Western society, rather schizophrenically, has increasingly championed the notion of universal human rights, but has also increasingly rejected any notion of a universal human nature. On the other hand, the Church has a clear understanding of a universal human nature, perceiving the end for which we have been made, and the purpose of our powers of reason and conscience. So, the Second Vatican Council said that "since it has been entrusted to the Church to reveal the mystery of God, Who is the ultimate goal of man, she opens up to man at the same time the meaning of his own existence, that is, the innermost truth about himself. The Church truly knows that only God, Whom she serves, meets the deepest longings of the human heart, which is never fully satisfied by what this world has to offer". It is on this understanding of the human person, which is deeply purposive, that the Church is able to speak of the natural law, and thence of human rights. Humanity has these universal rights for a reason: so as to enable all human beings to flourish and ultimately, uplifted by grace, to reach the goal of their deepest longings.

What does the Pope mean when he says that the "in some respects [equal opportunity legislation] actually violates the natural law"? He most certainly does not mean that it is unnatural to strive for equality and fairness. Neither does he think it is good to discriminate unjustly against any people in society. However, he does seem concerned that the Government's championing of the ideology of equality, divorced from its philosophical foundation in natural law, means that some laws, do not actually promote the flourishing of humankind according to their universal human nature. And the Pope does not just have the Equality Bill in mind but also the Sexual Orientation Regulations which have affected the Church's adoption agencies.

The issue on which this coalesces, then, is one which excites the media and which Western society finds controversial, namely, homosexuality. More precisely, as we have seen above, the issue is not about homosexuality per se, but so-called practising homosexuality. For the Church actually distinguishes between the homosexual orientation and the sexual acts that one with such an orientation chooses to do. The media and our society often fail to make this kind of distinction, seeing sexual activity as an inevitable expression of one's sexuality. Therefore, society thinks that to discriminate against homosexuals would be to violate their fundamental human right to sexual expression and love.

Christians, who believe that God is love, would certainly agree that love is a fundamental human right, but it is less clear how sexual expression is a human right. For if that is so, then we religious and priests - including the Pope - would be denied a fundamental human right! But perhaps some people do think we are less-than-human ... Contrary to what our sex-obsessed world seems to think, sexual intercourse is not a fundamental human right, and although life may be poorer without it, one is no less human without it. For a celibate Christian, life is enriched by friendship and the love of God through love for our neighbour. Thus, St Teresa of Calcutta has been called a deeply erotic woman, for she expressed her sexuality through a life poured out for others. But that might sound strange when we have become so accustomed to think of sex as a means to our own pleasure rather than as a gift of oneself to another person, and the pleasure we receive as a result of this self donation.

We need to bear the above in mind if we are to even try to understand what the Pope has said and why natural law comes into the discussion on homosexuality. The Church does not unjustly discriminate against homosexuals nor does she treat them unfairly. However, she does want to help homosexuals to live according to their human nature so that they can flourish and grow as human beings. So, we are all free to love and to express that love in accordance with our human nature. But we are not free to express that love in a way that violates our human nature, or even human mores. We know the latter all too well in our generation as we are faced with the atrocity of paedophilia. But again, what we seem to have in Western society is a morality just founded on positive laws but the State has ignored the very law of nature. As such, the State posits that people of the same sex are free to marry (or form 'civil partnerships'), adopt and form a family, and engage in sexual intercourse. Indeed, the State equates the social and moral value of homosexual acts with heterosexual acts. By doing all this, the natural law is violated. This is what Pope Benedict had in mind when he said back in December 2008: "if the Church speaks of the nature of the human being as man and woman, and demands that this order of creation be respected, this is not some antiquated metaphysics. What is involved here is faith in the Creator and a readiness to listen to the “language” of creation. To disregard this would be the self-destruction of man himself, and hence the destruction of God’s own work". Then, as now, the media reacted intemperately, refusing to countenance a vision of the human person that differed from the common view of modern society.

Building a Just, Fair and Peaceful Society

Nevertheless, society is relentless in claiming more and more human rights, building a fortress of rights on a foundation of clouds because it denies the natural law. Blessed John XXIII was one of the first popes to use the language of human rights, but he balanced those rights with a careful "observance of the divinely established order", and of corresponding rights and responsibilities as the only way to attain global peace. Why? Because this balance is founded on the more fundamental and God-given notions of justice and the equal dignity of humankind. Thus John XXIII explains: "In human society one man's natural right gives rise to a corresponding duty in other men; the duty, that is, of recognizing and respecting that right. Every basic human right draws its authoritative force from the natural law, which confers it and attaches to it its respective duty. Hence, to claim one's rights and ignore one's duties, or only half fulfill them, is like building a house with one hand and tearing it down with the other." Harriet Harman rightly desires to create a "peaceful society" based on equality and fairness. She is joined by Christians in this desire, but not at the expense of our duty to uphold the natural law.

There is much talk of rights these days, but hardly anything is said of our responsibility to God, to creation, to society and the common good. We have become like teenagers who demand more freedom and rights but fail to do our chores and face our responsibilities! The Church does not like to be cast as the nagging mother, but someone has to do the job and remind us that rights come with responsibilities and that we cannot impugn the natural law as we please. Church men like the Dominican friars De Vitoria, De Soto and Las Casas once helped their nation to see that they could not ignore natural law and destroy the Americas as they pleased. So too today, the Pope has called on the Bishops of England & Wales and the people of our countries to heed the natural law and curb our desire to do as we please. We have been given rights as citizens. It is our corresponding duty to help our legislators to frame good law that is just and fair. Moreover, as Christians, citizens of God's kingdom, we have also been given the duty of transforming this world through God's Law of Love. And this Love alone is the ground and guarantee of a society in which, as Harriet Harman says, "everyone [has the] opportunity to fulfil their potential", and it is in God that we have true equality, fraternity and liberty.

Lawrence Lew OP

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