Cardinal Burke's Address in Kenya on Law at Service of Justice and Truth

"There can be no question that the laws which govern a nation must be founded upon right reason"

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NAIROBI, Kenya, SEPT. 12, 2012 (Zenit.org).- Here is the text of an address Cardinal Raymond Burke, prefect of the Apostolic Signatura, gave Aug. 27 at Strathmore University in Nairobi. His talk was titled "Law at the Service of Justice and Truth."

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Introduction

It is a pleasure for me to speak to the Law School of Strathmore University. I express my deepest gratitude to Dr. Luis Franceschi, Dean of the Law School, for the invitation to speak to you today, and I thank all those who have made it possible for me to be with you. It is my hope that my presence will confirm, in some small way, the fundamental service of higher education which Strathmore University has been faithfully providing since its beginnings in 1961, and, in particular, the critical service of the Law School.

The topic which I wish to address pertains to the law as servant of justice and truth. It may seem a somewhat unusual topic to address at a university which specializes in the study of commerce and information technology. In fact, it is a most appropriate subject for me to discuss with you who are devoted to the study of law and with the whole student body of the University, for, no matter what may be the field of our studies and professional work, all of us are called to live in society in a right and just manner, in order that the good of all may be safeguarded and fostered.

In speaking about the law, I must first acknowledge the contemporary fragility of the rule of law, upon which any stable form of society and government depends. Such fragility seems to be owed, in good part, to a profound confusion regarding the rule of law and its foundations. For that reason, I think it important for us to reflect upon the fundamental question of the law’s service of truth and justice.[i]

Political Life, Virtue and Law

Aristotle’s reflection on the political life and his preference for the republic as a form of government help us to understand the foundational importance of the rule of law. Commenting on Aristotle’s reasons for favoring a republican form of government, combining good features of both oligarchy and democracy, Monsignor Robert Sokolowski, renowned professor of the School of Philosophy at The Catholic University of America in Washington, D.C., underlines the essential relationship between a stable political life and the respect for the norm of law. He writes:

In a republic, a large middle class – middle in both an economic and an ethical sense – is established between the rich and the poor, and the laws and not men rule, and they do so for the benefit of the whole city, not for any particular part.  To live this way is a great human accomplishment. It is a truly exalted exercise of reason for citizens to allow the laws to rule, to have the strength of reason and character to subordinate themselves to the law, which they allow to rule for the benefit of the whole. Not all people have the civic habits and public vision to let the laws and not their own partisan interests rule over the whole; not all people are immediately capable of being citizens.[ii]

The stability of any society or government depends upon the education of the people in the civic virtues which respect the rule of law for the good of all.

If democracy, for example, is “government of the people, by the people, for the people,” as Abraham Lincoln described the United States government during the time of the great struggle to eliminate the evil of slavery, it cannot be reduced to the rule of the majority.[iii] While the rule of the majority can be qualified, according to a literal understanding, as government “by the people,” it may well not be government “of the people” and “for the people.” In other words, the majority of the people may lose respect for the rule of law in its essential relationship to the common good. Then, the majority aligns itself with partisan interests and supports laws which deny the recognition of fundamental rights to a certain class of people, for example, a law denying to the members of a certain class the right to life, because they are seen to be a hindrance to the pursuit of the individual interests of those in power. Government, in that case, cannot be said to be “of the people” and “for the people.”

Pope Benedict XVI addressed the question of the foundations of law in his address to the Bundestag during his Pastoral Visit to Germany in September of 2011. Taking leave from the story of the young King Solomon on his accession to the throne, he recalled to political leaders the teaching of the Holy Scriptures regarding the work of politics. God asked King Solomon what request he wished to make as he began to rule God’s holy people. The Holy Father commented:

What will the young ruler ask for at this important moment? Success – wealth – long life – destruction of his enemies? He chooses none of these things. Instead, he asks for a listening heart so that he may govern God’s people, and discern between good and evil (cf. 1 Kg 3:9).[iv]

The story of King Solomon, as Pope Benedict XVI observed, teaches what must be the end of political activity and, therefore, of government. He declared: “Politics must be a striving for justice, and hence it has to establish the fundamental preconditions for peace…. To serve right and to fight against the dominion of wrong is and remains the fundamental task of the politician.”[v]

            Pope Benedict XVI then asked how we know the good and right which the political order and specifically the law is to safeguard and promote. While he acknowledged that in many matters “the support of the majority can serve as a sufficient criterion,”[vi] he observed that such a principle is not sufficient “for the fundamental issues of law, in which the dignity of man and of humanity is at stake.”[vii] Regarding the very foundations of the life of society, positive civil law must respect “nature and reason as the true sources of law.”[viii] In other words, one must have recourse to the natural moral law which God has inscribed in every human heart.

Referring to a text of Saint Paul’s Letter to the Romans regarding the natural moral law and its primary witness, the conscience, Pope Benedict XVI declared: “Here we see the two fundamental concepts of nature and conscience, where conscience is nothing other than Solomon’s listening heart, reason that is open to the language of being.”[ix] Further illustrating the sources of law in nature and reason by making reference to the popular interest in ecology as a means of respecting nature, he observed:

Yet I would like to underline a point that seems to me to be neglected, today as in the past: there is also an ecology of man. Man too has a nature that he must respect and that he cannot manipulate at will. Man is not merely self-creating freedom. Man does not create himself. He is intellect and will, but he is also nature, and his will is rightly ordered if he respects nature, listens to it and accepts himself for who he is, as one who did not create himself. In this way, and in no other, is true human freedom fulfilled.[x]

Reflecting upon European culture which developed “from the encounter between Jerusalem, Athens and Rome -- from Israel’s divine faith, the philosophical reason of the Greeks and Roman legal thought,”[xi] he, therefore, concluded: “In the awareness of man’s responsibility before God and in the acknowledgment of the inviolable dignity of every single human person, it [European culture] has established criteria of law: it is these criteria that we are called to defend at this moment in our history.”[xii] While Pope Benedict XVI’s reflection is inspired by a concern for the state of law in the European culture, his conclusions regarding the foundations of law and, therefore, of order in society are clearly universal in application.

Order in Society and the Common Good

If any form of government is to serve a community or nation, society must recognize a certain order which permits the individual to pursue his own good, while, at the same time, respecting the good of others who form a community with him. The good is defined by the order found in the nature of persons and things, by which the same persons and things are directed to objective ends. In truth, the individual must understand that his own good cannot be served, while the good of others and the order of creation are violated. The individual cannot achieve his proper end and, therefore, happiness, apart from the respect of the proper end and ultimate happiness of his neighbor, and the proper end of the things with which he interacts.  Government is, otherwise, reduced to the tyranny of whatever group is able to prevail by winning the support of a majority.

Without the recognition of the common good, to which the individual good is essentially related and which it serves, society breaks down and a government is soon beset by the violence and destruction which is the inevitable fruit of unbridled individualism and self-pursuit. The Second Vatican Ecumenical Council described the common good precisely in the context of the formation of a political community:

Individuals, families, and the various groups which make up the civil community, are aware of their inability to achieve a truly human life by their own unaided efforts; they see the need of a wider community in which each one will make a specific contribution to an even broader implementation of the common good. For this reason, they set up various forms of political communities. The political community, then, exists for the common good: this is its full justification and meaning and the source of its specific and basic right to exist. The common good embraces the sum total of all those conditions of social life which enable individuals, families, and organizations to achieve complete and efficacious fulfillment.[xiii]

The English word, fulfillment, translates the original Latin word, perfectio. Fulfillment does not signify some self-defined condition but rather the perfection of the individual or group, according to man’s proper nature and end.

The laws of a democratic nation, therefore, are to be ordered to the common good, which, one hopes, will coincide with the will of the majority, but which will, in any case, not only be laws “by the people” but also laws “of the people” and “for the people.” The Second Vatican Ecumenical Council also taught the necessary relationship of the legal and juridical order of a society with the common good and, therefore, the moral order. It declared:

It follows that political authority, either within the political community as such or through organizations representing the state, must be exercised within the limits of the moral order and directed toward the common good (understood in the dynamic sense of the term) according to the juridical order legitimately established or due to be established. Citizens, then, are bound in conscience to obey. Accordingly, the responsibility, the dignity, and the importance of those who govern is clear.[xiv]

The objectivity of the common good, as it is discovered by right reason in the natural order, determines the good order of a nation. Laws which safeguard the common good rest on the reality of the nature and end of the persons and of the things whom or which they govern. It is essential that citizens be educated to understand the relationship between the political order and the common good, in order that they obey the laws. It is essential that lawmakers and servants of justice understand the meaning of law for the citizens as individuals and as a community.

            In his Encyclical Letter Caritas in Veritate, Pope Benedict XVI takes up the question of the common good which, in his words, “is sought not for its own sake, but for the people who belong to the social community and who can only really and effectively pursue their good within it.”[xv] Dedication to the common good, as Pope Benedict XVI makes clear, is an obligation imposed by both justice and charity. He concludes: “The more we strive to secure a common good corresponding to the real needs of our neighbours, the more effectively we love them.”[xvi]

Law and Metaphysics

The realism of laws, their foundation upon the objective nature and end of things, has been, for some time, severely questioned or rejected by a positivist and utilitarian philosophy. Pope Benedict XVI succinctly describes the situation in his speech to the Bundestag in September of 2011. Speaking about the contemporary banning of the discussion of the natural moral law in public discourse, he declared:

Fundamentally it is because of the idea that an unbridgeable gulf exists between “is” and “ought”. An “ought” can never follow from an “is”, because the two are situated on completely different planes. The reason for this is that in the meantime, the positivist understanding of nature has come to be almost universally accepted…. A positivist conception of nature as purely functional, as the natural sciences consider it to be, is incapable of producing any bridge to ethics and law, but once again yields only functional answers.[xvii]

Clearly, the positivist view divorces the law from its metaphysical foundations.

Such a view also clearly excludes from reason anything which is not demonstrable according to the positivist criteria. Pope Benedict XVI, therefore concluded:

Anything that is not verifiable or falsifiable, according to this understanding, does not belong to realm of reason strictly understood. Hence ethics and religion must be assigned to the subjective field, and they remain extraneous to the realm of reason in the strict sense of the word. Where positivist reason dominates the field to the exclusion of all else – and that is broadly the case in our public mindset – then the classical sources of knowledge for ethics and law are excluded.[xviii]

Father Edward J. Richard, Missionary of La Salette and distinguished moral theologian, in his article published in two parts, “Law and Morality: Taking a Theoretical Break from the Norm,” describes the philosophical underpinnings of the theory of legal positivism, sometimes also called legal realism.[xix] At the same time, he examines a parallel development among certain Catholic moral theologians who follow a moral theory which is called consequentialism or proportionalism.

The moral theory in question judges the goodness of an act, according to an intended good consequence, even if the means of achieving the intended good is evil in itself. Both the legal theory and the moral theory are rooted in an instrumentalist view of the world. Richard comments:

With norms as means to ends, the legal or moral outcome can never be indicated by the norm itself. In other words, acting contrary to a norm is not in itself to be considered morally or legally wrong. In both the legal theory and the moral theory presented, the rule or norm is considered a guide. One must consider the relevant circumstances, including the purposes and ends of the rules and the actions in question, before the moral or legal determination is reached. Competing values or interests at the root of the formulation of the rule may, in a given case, give rise to a conflict. Only when this conflict is resolved in light of the relevant circumstances and possible outcomes is the legality or morality of the act decided.[xx]

The parallel development among some Catholic moral theologians has added to the confusion regarding the nature of the law and its service of the common good. Moral theory, distorted and betrayed by the consequentialist or proportionalist thesis, is not in a position to carry out its native service of pointing to the truth about the law and, in fact, participates in the deadly confusion of legal positivism.

            Pope Benedict XVI made reference to the grievous damage done by such thinking in his Christmas Address to the Roman Curia in 2010. Making reference to the grave evils of our times, for example, paedophilia, child pornography, and the abuse of drugs, he commented:

No pleasure is ever enough, and the excess of deceiving intoxication becomes a violence that tears whole regions apart – and all this in the name of a fatal misunderstanding of freedom which actually undermines man’s freedom and ultimately destroys it.[xxi]

He observed that, in order to overcome such evils, their “ideological foundations,” “a fundamental perversion of the concept of ethos,” must be uncovered.[xxii]

            He then provided a description of the ideological foundations of the moral evils of our time with these words:

It was maintained – even within the realm of Catholic theology – that there is no such thing as evil in itself or good in itself. There is only a “better than” and a “worse than”. Nothing is good or bad in itself. Everything depends on the circumstances and on the end in view. Anything can be good or also bad, depending upon purposes and circumstances. Morality is replaced by a calculus of consequences, and in the process it ceases to exist.[xxiii]

Such thinking is clearly contrary to the moral thinking of the Church which holds that certain actions are good in themselves, intrinsically good, and certain actions are evil in themselves, intrinsically evil.[xxiv] The disastrous effect of such profoundly erroneous thinking upon the concept of law is evident.

Blessed Pope John Paul II, in his Encyclical Letter Veritatis splendor, refuting the serious errors of consequentialism or proportionalism, noted the importance of sound moral teaching for the political order. He recalled the reason for the Church’s insistence upon the objective moral order, when he wrote:

The Church’s firmness in defending the universal and unchanging moral norms is not demeaning at all. Its only purpose is to serve man’s true freedom. Because there can be no freedom apart from or in opposition to the truth, the categorical – unyielding and uncompromising – defense of the absolutely essential demands of man’s personal dignity must be considered the way and the condition for the very existence of freedom.[xxv]

The recognition of an objective moral order in law is, therefore, necessary, if freedom is to be served. The Church’s clarity in teaching the moral truth and in refuting moral error is critical to the sound political order. The Church’s moral teaching forms the character of the citizens who are her faithful and also of other men of good will who recognize the truth of her teaching, in accord with the common good. On the other hand, moralists whose theories do not correctly account for universal and unchanging moral norms undermine human freedom in the political order.

Pope John Paul II went on to reflect upon the danger of “a totalitarian conception of the world” which democracies in the West have deplored in governments of Marxist inspiration, while at the same time they deny “the fundamental rights of the human person” and absorb “the religious yearnings which arise in the heart of every human being” into politics.[xxvi] He observed:

This is the risk of an alliance between democracy and ethical relativism, which would remove any sure moral reference from political and social life, and, on a deeper level, make the acknowledgment of truth impossible.[xxvii]

Pope John Paul II then quoted a telling declaration from his Encyclical Letter Centesimus annus: “As history demonstrates, a democracy without principles easily turns into open or thinly disguised totalitarianism.”[xxviii]

The wisdom of Blessed Pope John Paul II’s caution is sadly verified, for example, in the legal system of the United States which, uncritically accepting the positivist legal doctrine, has placed the foundation of the laws upon the shifting sands of relativism. One example of its application will show that it is not simply a question of theoretical considerations. In a decision of the United States Supreme Court, in Planned Parenthood of Southeastern Pennsylvania v. Casey, given on June 29, 1992, the majority opinion declared:

At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.[xxix]

Such language uncovers an understanding of the law which is totally divorced from any objective reality, any metaphysical principle. According to the decision, the law and its application must respect the individual’s “concept” of the world and of human life. The language of the decision condones a form of individualism and of pursuit of self-interest which is truly totalitarian. Pope John Paul II’s clarification of the moral truth to be taught in the Church and his correction of consequentialism and proportionalism are most timely also for the world of politics.

I note that the term, values, which is commonly used today in the discussion of the relationship between morality and law, can be problematic, for it comes from the economic world and the relative assessment of the worth of things. I prefer the word, goods or virtues. In other words, values can change, according to human assessment, while goods or virtues, inherent in the God-given nature and end of persons and things, endure.

Law in Relationship to Truth and Justice

What makes law true and just, that is, in conformity with the God-given nature of persons and things, and their proper ends? The perennial answer to this critical question is the natural moral law. The natural law establishes the first and evident principles which guarantee the realism and, therefore, the justice of laws.

Law is more than the command of the sovereign or the will of the majority. It has its foundation in the unchanging truth about ourselves and our world, which is safeguarded by the natural moral law written by God upon every human heart. The natural moral law alone gives positive law the deep and stable foundation which it requires and which can truly bind individuals and communities.

Wolfgang Waldstein has shown that knowledge of the law of nature or the natural law as the foundation of the legal order is evident in the earliest known legal documents. He concludes: “As far back as we have sources concerning legal problems we find the clear awareness of the fact that man finds himself in a legal order not produced by man himself, but being part of the creation of the world.”[xxx] Waldstein, citing the ancient sources, for example, Cicero, refutes the false claim that the concept of the natural law rests upon the so-called “naturalistic fallacy,” showing that the claim “departs from the positivistic presupposition that nature is only material reality.”[xxxi] Reflecting on the results of the false claim, advanced not only by legal theorists but also by certain moral theologians, Waldstein quotes a passage from Pope John Paul II’s Encyclical Letter Evangelium vitae, which pertains especially to the service of truth and justice at the heart of law:

If, as a result of the tragic obscuring of the collective conscience, an attitude of skepticism were to succeed in bringing into question even the fundamental principles of the moral law, the democratic system itself would be shaken in its foundations, and would be reduced to a mere mechanism for regulating different and opposing interests on a purely empirical basis.[xxxii]

Natural law expresses the metaphysical order which can be, has been and is known by the use of human reason.

The natural law expresses the end to which our practical action must tend, if it is to be true and free. Saint Thomas Aquinas declared:

Hence this is the first precept of law, that good is to be done and pursued, and evil is to be avoided.[xxxiii]

The good for man is that which most perfectly corresponds to his nature and finality. Saint Thomas Aquinas immediately derives other precepts from the first precept of the natural law.  The first of these is “whatever is a means of preserving human life, and of warding off its obstacles, belongs to the natural law.”[xxxiv]

The natural law presupposes that our consideration of particular practical actions or laws, for example, is based on the proper ends of persons and things, and not on my individual purposes. It presupposes that man, through the use of reason, can know the proper ends of persons and things, and respect them in the political order. Saint Thomas Aquinas described the relationship of reason and the natural law:

[T]he precepts of the natural law are to the practical reason, what the first principles of demonstrations are to the speculative reason; because both are self-evident principles.[xxxv]

Natural law, therefore, establishes positive law upon metaphysical principles of the good and freedom of man, and safeguards it against the tyranny of self-interest and of individual purposes.

Monsignor Robert Sokolowski addresses the relationship of the natural law to the Church’s teaching of it. Often, natural law doctrine is rejected in Europe and the United States of America as the attempt of a religious confession to impose its confessional beliefs on the general population. Sokolowski reminds us that the teaching of the natural law in the Sacred Scriptures does not destroy its “natural visibility” to human reason.[xxxvi] In other words, the Church did not invent the notion of the natural law. He insightfully cautions us against the pitfall of seeing the natural law proclaimed in the Sacred Scriptures as an expression of God’s purposes, rather than an expression of the order which He has written in nature and inscribed in the “hearts of men,” as Saint Thomas Aquinas teaches us.[xxxvii]

The inscription of the natural law in the heart of man means that man, by the use of reason, is meant to know the true ends of things and to act accordingly.  It is not a question of divine voluntarism. Sokolowski observes:

I would suggest that when Aquinas says that the natural law is written in the hearts of men, he is referring to the capacity for truth that we have been describing when we said that the natural ends of things must be distinguished from our own purposes and from convention. This elementary differentiation, this recognition that my purposes are not all there is, and that the way we do things is not all there is, is a way of being truthful that is achieved by the heart, which if it is sound can cut through the impediments of being impulsive, obtuse, immature, and vicious.[xxxviii]

The understanding of man’s capacity for truth must be the inspiration of the moral and civic education of children and young people who, as a result of the education, will be freed from the slavery of their individual purposes to serve their proper good and end, and the proper good and end of their fellow citizens and of the created order.

Conclusion

On March 30, 2006, Pope Benedict XVI spoke to the members of the European Popular Party, addressing the role of the Church in the political order. He brought to mind the irreplaceable contribution of the Church to democracy in Europe, both historically and at present, through the formation of citizens in the Christian virtues. He cautioned that the elimination of Christians, as Christians, from the political order would result in the loss of the strength which the Christian faith and its practice bring to any nation or political body. He described the perennial service of the Church and of her teaching to the civic community. He stated:

It must not be forgotten that, when Churches or ecclesial communities intervene in public debate, expressing reservations or recalling various principles, this does not constitute a form of intolerance or an interference, since such interventions are aimed solely at enlightening consciences, enabling them to act freely and responsibly, according to the true demands of justice, even when this should conflict with situations of power and personal interest.[xxxix]

He had already presented the same teaching, in a more solemn manner, in his Encyclical Letter Deus caritas est, in which he discussed the relationship of justice, politics and ethics.

Regarding the Church’s involvement in the political order, he declared in Deus caritas est:

Faith enables reason to do its work more effectively and to see its proper object more clearly. This is where Catholic social teaching has its place: it has no intention of giving the Church power over the State. Even less is it an attempt to impose on those who do not share the faith ways of thinking and modes of conduct proper to faith. Its aim is simply to help purify reason and to contribute, here and now, to the acknowledgment and attainment of what is just.[xl]

Pope Benedict XVI makes it clear that the Church’s social teaching “argues on the basis of reason and natural law, namely, on the basis of what is in accord with the nature of every human being.”[xli]

Pope Benedict XVI makes it clear that the principles which he has enunciated “are not truths of faith, even though they receive further light and confirmation from faith; they are inscribed in human nature itself and therefore they are common to all humanity.”[xlii] The Christian faith does not contradict human reason but gives it inspiration and strength in considering what is right and just, above all, in the political order. Robert Sokolowski observes: “What seemed noble and decent in the natural order remains so, and it is confirmed in its goodness by being involved in this new context of grace.”[xliii]

There can be no question that the laws which govern a nation must be founded upon right reason, distinguishing ends from purposes, and respecting fully the natural law which God has written upon every human heart. In the present situation, the Church’s service of the world demands of her, above all, a witness to the foundation of the political order upon the unchanging precepts of the natural moral law, which God has taught and teaches to all men and women of every place and time. In such a political order, law will indeed serve all that is true and just.

Raymond Leo Cardinal BURKE

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NOTES

[i] Regarding the entire question of the fragility of the rule of law and the metaphysical foundation of law, I draw heavily upon an earlier presentation given on July 10, 2006, at the 9th Deutsch-Amerikanisches Kolloquium, held at Wildbad Kreuth in Germany and published under the title, “The Natural Moral Law: Foundation of Legal Realism,” in Die fragile Demokratie – The Fragility of Democracy, ed. Anton Rauscher, Berlin: Duncker & Humblot, 2007, pp. 29-45.

[ii] Robert Sokolowski, “The Human Person and Political Life,” in Christian Faith and Human Understanding: Studies on the Eucharist, Trinity, and the Human Person, Washington, D.C.: The Catholic University of America Press, 2006, pp. 184-185.

[iii] Abraham Lincoln, “Address at Gettysburg, Pennsylvania,” 19 November 1863, in Abraham Lincoln: Speeches and Writings 1859-1865, New York: The Library of America, 1989, p. 536.

[iv] “Was wird sich der junge Herrscher in diesem Augenblick erbitten? Erfolg – Reichtum – langes Leben – Vernictung der Feinde? Nicht um diese Dinge bitter er. Er bittet: „Verleih deinem Knecht ein hörendes Herz, damit er dein Volk zu regieren und das Gute vom Bösen zu unterscheiden versteht“ (1 Kön 3,9).” Benedictus PP. XVI, Allocutio “Iter apostolicum in Germaniam: ad Berolinensem foederatum coetum oratorum,” 22 Septembris 2011, Acta Apostolicae Sedis 103 (2011), p. 663. English translation: L’Osservatore Romano Weekly Edition in English, 28 September 2011, p. 6. 

[v] “Politik muss Mühen um Gerechtigkeit sein und so die Grundvoraussetzung für Frieden schaffen… Dem Recht zu dienen und der Herrschaft des Unrechts zu wehren ist und bleibt die grundlegend Aufgabe des Politikers.” Ibid., p. 664. English translation: Ibid., p. 6.

[vi] “kann die Mehrheit ein genügendes Kriterium sein.” Ibid., p. 664. English translation : Ibid., p. 6.

[vii] “in den Grundfragen des Rechts, in denen es um die Würde des Menschen und der Menschheit geht.” Ibid., p. 664. English translation: Ibid., p. 6.

[viii] “Natur und Vernunft als die wahren Rechtsquellen.” Ibid., p. 665. English translation: Ibid., p. 6.

[ix] “Hier erscheinen die beide Grundbegriffe Natur und Gewissen, wobei Gewissen nichts anderes ist als das hörende Herz Salomons, als die der Sprache des Seins geöffnete Vernunft.” Ibid., p. 666. English translation: Ibid., p. 6.

[x] “Ich möchte aber nachdrücklich einen Punkt ansprechen, der nach wie vor – wie mir scheint – ausgeklammert wird: es gibt auch eine Ökologie des Menschen. Auch der Mensch hat eine Natur, die er achten muß und die er nicht beliebig manipulieren kann. Der Mensch is nicht nur sich selbst machende Freiheit. Der Mensch macht sich nicht selbst. Er ist Geist und Wille, aber er ist auch Natur, und sein Wille ist dann recht, wenn er auf die Natur achtet, sie hört und such annimmt also der, der er ist und der sich nicht selbst gemacht hat. Gerade so und nur so vollzieht sich wahre menschliche Freiheit.” Ibid., p. 668. English translation: Ibid., p. 7.

[xi] “aus der Begegnung von Jerusalem, Athen und Rom – aus der Begegnung zwischen dem Gottesglauben Israels, der philosophischen Vernunft der Griechen und dem Rechtsdenken Roms.” Ibid., p. 669. English translation: Ibid., p. 7 (corrected by the author).

[xii] “Sie hat im Bewußtsein der Verantwortung des Menschen vor Gott und in der Anerkenntnis der anantastbaren Würde des Menschen, eines jeden Menschen, Maßstäbe des Rechts gesetzt, die zu verteidigen uns in unserer historischen Stunde aufgegeben ist.” Ibid., p. 669. English translation: Ibid., p. 7.

[xiii] “Homines, familiae et varii coetus, qui communitatem civilem constituunt, propriae insufficientiae ad vitam plene humanam instituendam conscii sunt et necessitatem amplioris communitatis percipiunt, in qua omnes, ad commune bonum semper melius procurandum, cotidie proprias vires conferant. Quapropter communitatem politicam secundum varias formas constituunt. Communitas ergo politica propter illud commune bonum exsistit, in quo suam plenam iustificationem et sensum obtinet, et ex quo ius suum primigenum et proprium depromit. Bonum vero commune summam complectitur earum vitae socialis condicionum, quibus homines, familiae et consociationes, suam ipsorum perfectionem plenius atque expeditius consequi possint.” Concilium Oecumenicum Vaticanum II, Constitutio Pastoralis Gaudium et spes, “De Ecclesia in mundo huius temporis,” 7 Decembris 1965, Acta Apostolicae Sedis, 58 (1966), 1095-1096, n. 74. English translation: Vatican Council II: The Conciliar and Post Conciliar Documents, ed. Austin Flannery, O.P., Collegeville, Minnesota: Liturgical Press, 1975, pp. 980-981, no. 74.

[xiv] “Sequitur item auctoritatis politicae exercitium sive in communitate ut tali, sive in institutis rem publicam repraesentantibus, semper intra fines ordinis moralis ad effectum deducendum esse, ad commune bonum – et quidem dynamice conceptum – procurandum, secundum ordinem iuridicum legitime statutum vel statuendum.  Tunc cives ad obedientiam praestandam ex conscientia obligantur.  Exinde vero patet responsibilitas, dignitas et momentum eorum, qui praesunt.” Ibid, p. 1096, n. 74.  English translation: Ibid., p. 981, no. 74.

[xv] “per se ipsum conquisitum, sed personarum gratia, quae communitatem socialem participant atque in ea tantum reapse et efficaciter bonum suum consequi possunt.” Benedictus PP. XVI, Litterae encyclicae Caritas in veritate, “De humana integra progressione in caritate veritateque,” 29 Iunii 2009, Acta Apostolicae Sedis, 101 (2009), p. 645, n. 7. English translation: Città del Vaticano: Libreria Editrice Vaticana, 2009, p. 9, no. 7.

[xvi] “Eo efficacius proximus amatur, quo magis bonum commune colitur, quod veris necessitatibus occurrat.” Ibid., p. 645, n. 7. English translation: Ibid., p. 10, no. 7.

[xvii] “Grundlegend is zunächst die These, dass zwischen Sein und Sollen ein unüberbrückbarer Grabe ist. Aus Sein könne kein Sollen folgen, weil es sich da um zwei völlig verschiedene Bereiche handle. Der grund dafür ist das inzwischen fast allegemein angenommene positivistische Verständnis von Natur.... Ein positivischer Naturbegriff, der nie Natur rein funktional versteht, so wie die Naturwissenschaft sie erkennt, kann kein Brücke zu Ethos und Recht herstellen, sondern widerum nur funktionale Antworten hervorrufen.” Benedictus PP. XVI, Allocutio “Iter apostolicum in Germaniam: ad Berolinensem foederatum coetum oratorum,” 22 Septembris 2011, Acta Apostolicae Sedis 103 (2011), p. 666. English translation: L’Osservatore Romano Weekly Edition in English, 28 September 2011, p. 7.

[xviii] “Was nicht verifizierbar oder falsifizierbar ist, gehört danach nicht in den Bereich der Vernunft im strengen Sinn. Deshalb müssen Ethos und Religion dem Raum des Subjektiven zugewiesen werden und fallen aus dem Bereich der Vernunft im strengen Sinn des Wortes heraus. Wo die alleinige Herrschaft der positivistischen Vernunft gilt – und das ist in unserem öffenlichen Bewußtsein weithin der Fall -- , da sind die klassischen Erkenntnisquellen für Ethos und Recht außer Kraft gesetzt.“ Ibid., p. 667. English translation: Ibid., p. 7.

[xix] Edward J. Richard, M.S., “Law and Morality: Taking a Theoretical Break from the Norm,” Studia Moralia, 35 (1997), 427-443; and 36 (1998), 239-265.

[xx] Edward J. Richard, M.S., “Law and Morality: Taking a Theoretical Break from the Norm,” Studia Moralia, 36 (1998), 255.

[xxi] “Ogni piacere diventa insufficiente e l’eccesso nell’inganno dell’ebbrezza diventa una violenza che dilania intere regioni, e questo in nome di un fatale fraintendimento della libertà, in cui proprio la libertà dell’uomo viene minata e alla fine annullata del tutto.” Benedictus PP. XVI, Allocutio “Ad Curiam Romanam: Omina Nativitatis,” 20 Decembris 2010, p. 36. English translation: L’Osservatore Romano Weekly Edition in English, 22-29 December 2010, p. 13.

[xxii] “fondamenti ideologici.” “una perversione di fondo del concetto di ethos.” Ibid., p. 36. English translation: Ibid., p. 13.

[xxiii] “Si asseriva – persino nell’ambito della teologia cattolica – che non esisterebbero né il male in sé, né il bene in sé. Esisterebbe soltanto un «meglio di» e un «peggio di». Niente sarebbe in se stesso bene o male. Tutto dipenderebbe dalle circostanze e dal fine inteso. A seconda degli scopi e delle circostanze, tutto potrebbe essere bene o anche male. La morale viene sostituita da un calcolo delle conseguenze e con ciò cessa di esistere.” Ibid., p. 37. English translation: Ibid., p. 13.

[xxiv] Cf. Catechismus Catholicae Ecclesiae, Città del Vaticano: Libreria Editrice Vaticana, 1997, nn. 1753 et 1756. English translation: Catechism of the Catholic Church, 2nd ed., Città del Vaticano: Libreria Editrice Vaticana, 1997, nos. 1753 and 1756.

[xxv] “Ecclesiae firmitudo in moralibus normis universalibus immutabilibusque tuendis nihil habet contumeliosi; verae hominis libertati solummodo inservit: quandoquidem praeter vel contra veritatem nulla libertas habetur, absoluta defensio, nimirum laxamentis et accomodationibus amotis, earum rerum, quas omnino necessarioque hominis personalis dignitas postulat, via est dicenda et condicio ipsius exsistentiae libertatis.” Ioannes Paulus PP. II, Litterae encyclicae Veritatis splendor, “De quibusdam quaestionibus fundamentalibus doctrinae moralis Ecclesiae,” 6 Augusti 1993, Acta Apostolicae Sedis, 85 (1993), 1209, n. 96. English translation: Vatican City State: Libreria Editrice Vaticana, p. 145, no. 96.

[xxvi] “totalitaria mundi visione... ob repudiationem fundamentalium iurium personae humanae... religiosae postulationis quae exsistit in corde cuiusvis hominis....” Ibid., 1212, n. 101. English translation: Ibid., p. 151, no. 101.

[xxvii] “est discrimen foederis inter democratiam et ethicum relativismum, qui convictum civilem privat quavis tuta morali ratione eum efficiendo omnino veritatis agnitione nudatum.” Ibid., 1212, n. 101. English translation: Ibid., pp. 151-152, no. 101.

[xxviii] “Populare tandem regimen principiis carens, in totalitarismum manifestum occultumve prompte vertitur, ut hominum annales commonstrant.” Ioannes Paulus PP. II, Litterae encyclicae Centesimus annus, “Saeculo ipso Encyclicis ab editis litteris «Rerum novarum» transacto,” 1 Maii 1991, Acta Apostolicae Sedis, 83 (1991), 850, n. 46. English translation: Vatican City State: Libreria Editrice Vaticana, p. 89, no. 46 (corrected by the author).

[xxix] Planned Parenthood v. Casey, 505 U.S. 833, 852 (1992).

[xxx] Wolfgang Waldstein, “Natural law and the defence of life in Evangelium Vitae,” in Evangelium Vitae: Five Years of Confrontation with the Society (Proceedings of the Sixth Assembly of the Pontifical Academy for Life, Vatican City, 11-14 February 2000), ed. Juan de Dios Vial Correa and Elio Sgreccia, Vatican City State: Libreria Editrice Vaticana, 2001, p. 225. Cf. Wolfgang Waldstein, “The capacity of the human mind to know natural law,” in The Nature and Dignity of the Human Person as the Foundation of the Right To Life: The Challenges of the Contemporary Cultural Context (Proceedings of the Eighth Assembly of the Pontifical Academy for Life, Vatican City, 25-27 February 2002), ed. Juan de Dios Vial Correa and Elio Sgreccia, Vatican City State: Libreria Editrice Vaticana, 2003, pp. 58-63; and Wolfgang Waldstein, Ins Herz geschrieben: Das Naturrecht als Fundament einer menschlichen Gesellschaft, Augsburg: Sankt Ulrich Verlag, 2010.

[xxxi] Wolfgang Waldstein, “The responsibility of the law towards the applications of biotechnologies of man,” in Human Genome, Human Person and the Society of the Future (Proceedings of the Fourth Assembly of the Pontifical Academy for Life, Vatican City, 23-25 February 1998), ed. Juan de Dios Vial Correa and Elio Sgreccia, Vatican City State: Libreria Editrice Vaticana, 1999, p. 399.

[xxxii] “Si autem, ob omnium conscientiae miserrimam obtenebrationem, sceptica ratio in dubium prima principia quoque moralis legis devocat, ipsa democratica institutio funditus evertitur atque ad meracam machinationem redigitur, quae re diversa dissonaque commoda moderatur.” Ioannes Paulus PP. II, Litterae encyclicae Evangelium vitae, “De vitae humanae inviolabili bono,” 25 Martii 1995, Acta Apostolicae Sedis, 87 (1995), 482, n. 70. English translation: Vatican City State: Libreria Editrice Vaticana, p. 128, no. 70. It is interesting to note that the translation of the title in English is “On the Value and Inviolability of Human Life,” while a more accurate translation of the Latin title would be: “On the Inviolable Good of Human Life.”

[xxxiii] “Hoc est ergo primum praeceptum legis, quod bonum est faciendum et prosequendum, et malum vitandum.” Summa theologiae, I-IIae, q. 94, art. 2. English translation: St. Thomas Aquinas, Summa Theologica, Complete English Edition, tr. Fathers of the English Dominican Province, Westminster, Maryland: Christian Classics, 1981, Vol. 2, p. 1009.

[xxxiv] “pertinet ad legem naturalem ea per quæ vita hominis conservatur, et contrarium impeditur.” Summa theologiae, I-IIae, q. 94, art. 2. English translation: Ibid., p. 1009.

[xxxv] “præcepta legis naturæ hoc modo se habent ad rationem practicam, sicut principia prima demonstrationum se habent ad rationem speculativam: utraque enim sunt quædam principia per se nota.” Summa theologiae, I-IIae, q. 94, art. 2. English translation: Ibid., p. 1009.

[xxxvi] Robert Sokolowski, “What Is Natural Law?: Human Purposes and Natural Ends,” in Christian Faith and Human Understanding: Studies on the Eucharist, Trinity, and the Human Person, Washington, D.C.: The Catholic University of America Press, 2006, p. 229. Cf. Wolfgang Waldstein, “The capacity of the human mind to know natural law,” p. 65.

[xxxvii] “Sed lex scripta in cordibus hominum est lex naturalis.” Summa theologiae, I-IIae, q. 94, art. 6. English translation: Ibid., p. 1012.

[xxxviii] Sokolowski, “What Is Natural Law?: Human Purposes and Ends,” pp. 230-231.

[xxxix] Benedictus PP. XVI, Allocutio “Ad Congressum a «Populari Europae Factione» provectum,” 30 Martii 2006, Acta Apostolicae Sedis, 98 (2006), 344. The allocution was delivered in English.

[xl] “Fides rationi tribuit quo melius compleat munus suum meliusque hoc quod proprium est sibi intueatur.  Hic reponitur catholica doctrina socialis: quae non vult Ecclesiae potestatem inferre in Civitatem. Neque iis qui fidem non participant imponere cupit prospectus et se gerendi modos huius proprios. Simpliciter prodesse cupit ad rationem purificandam suumque adiumentum afferre ita ut quod iustum habetur, hic et nunc agnosci ac postea ad rem perduci possit.” Benedictus PP. XVI, Litterae encyclicae Deus caritas est, “De christiano amore,” 25 Decembris 2005, Acta Apostolicae Sedis, 98 (2006), 239, n. 28. English translation: Vatican City State: Libreria Editrice Vaticana, p. 46, no. 28.

[xli] “argumentatur initium sumens a ratione et a naturali iure, id est ab eo quod congruit naturae cuiusque personae humanae.” Ibid., 239, n. 28. English translation: Ibid., p. 46, no. 28.

[xlii] Pope Benedict XVI, Allocutio “Ad Congressum a «Populari Europae Factione» provectum,” 30 Martii 2006, Acta Apostolicae Sedis, 98 (2006), 345.

[xliii] Sokolowski, “What Is Natural Law?: Human Purposes and Natural Ends,” p. 233.