LAW AND LIBERTY IN "VERITATIS SPLENDOR"
Russell Hittinger
One of the most curious and disturbing trends of our culture is the belief that the chief purpose of law is to annul the law itself. When authority is used to divest the community of its obligations under law, or when authority is used to recognize rights as so many immunities against the law—indeed when authority is used to subvert authority—then we tend to say that law is good) which is to say that it is accomplishing humane ends. Our ecclesial culture does not remain unaffected by this attitude.

Issues of moral theology are invariably reduced to questions of authority. When the Pope said that he has no authority to ordain women, many Catholics and non-Catholics alike were shocked by the suggestion that the Pope cannot use law for any purpose he so pleases. Whether we are speaking of marriage tribunals, altar girls, holy days of obligation, contraception, public policy on abortion, or whatever, people inside and outside the Church want apostolic authority used to ratify the liberty of individual choice. Law, it seems, is but a malleable tool in the hands of an interpreting community.

When law binds, it is called legalism; when it loosens, it is praised as humane. The Pope speaks to this problem at the very outset of <Veritatis splendor>, when he recounts the colloquy between Jesus and the rich young man in Matthew 19:

Then someone came to him and said, "Teacher, what good must I do to have eternal life?" And he said to him, "Why do you ask me about what is good? There is only one who is good. If you wish to enter into life, keep the commandments." He said to him, "Which ones?" And Jesus said, "You shall not murder; You shall not commit adultery; You shall not steal; You shall not bear false witness; Honour your father and mother; also, You shall love your neighbour as yourself." The young man said to him, "I have kept all these; what do I still lack?" Jesus said to him, "If you wish to be perfect, go, sell your possessions and give the money to the poor, and you shall have treasure in heaven; then come, follow me" (VS # 6).

The Pope explains that the first and ultimate question of morality is not a lawyerly question. Unlike the Pharisees, the rich young man does not ask what the bottom line is, from a legal standpoint. Rather, he asks what must be done in order to achieve the unconditional good, which is communion with God. Christ takes the sting out of law, not by annulling it, but by revealing the Good to which it directs us. Remove or forget the Good and it is inevitable that law becomes legalism. Legalism is nothing other than law without its context.

The scripture relates that the young man went away sad, for he had many possessions. But the modern audience is more apt to turn away sad when faced with the teaching that there is a moral law that is indispensable, and indeed which binds authority itself. John Paul II sometimes is treated like a simpleton, an ecclesiastical version of Dan Quayle, when he points out that all issues of circumstance, culture, place and time notwithstanding, certain actions can never be made right, and that no human "law" can make them right. Just as from the scales and axiomatic measures of music there can come a Beethoven sonata, or a Penderecki 12-tone composition, so, too, from obedience to the commandments there opens the possibility of a creative, fluid, and completely realized human liberty. The point of learning the scales is not mindless repetition; the point is to make beautiful music. No doubt, a piano teacher who only focused upon the scales would be a simpleton, a legalist as it were. But a piano teacher who neglected to call the pupil's attention to the scalar rudiments would not be worthy of the name teacher. Musical order does not, and indeed cannot, begin merely with human spontaneity and creative improvisation. The same is true in the domain of moral action. Any one who would set up an opposition between law and freedom, and then take the side of freedom, not only underestimates the need for law, but misrepresents the nature of freedom.

The story of the rich young man, of course, shows the essential unity of the Law and Gospel. In <Veritatis> the Pope also spends considerable effort dealing with a related theme: namely, the unity of the two tables of the Decalogue. "Acknowledging the Lord as God," he says, "is the very core, the heart of the law, from which the particular precepts flow and toward which they are ordered" (VS #11). Each precept, he continues, "is the interpretation of what the words 'I am the Lord your God' mean for man" (VS 513).

The issue of the two tables situates the theme of law and freedom, but it also stands at the center of the dispute between the Pope and the dissenting moral theologians. The ground of the problem is actually quite simple, so simple in fact that it is easy to overlook it, or to mistake it for some other kind of problem.


II.

Upon creation, did God give to our first parents a kind of plenary authority over "ethics"—over a sphere of this worldly conduct that more or less corresponds to the second table of the Decalogue? In <Veritatis>, the Pope has this to say about the answer often given by moral theologians:

Some people . . . disregarding the dependence of human reason on Divine Wisdom . . . have actually posited a "complete sovereignty of reason" in the domain of moral norms regarding the right ordering of life in this world. Such norms would constitute the boundaries for a merely "human" morality; they would be the expression of a law which man in an autonomous manner lays down for himself and which has its source exclusively in human reason. In no way could God be considered the Author of this law, except in the sense that human reason exercises its autonomy in setting down laws by virtue of a primordial and total mandate given to man by God. These trends of thought have led to a denial, in opposition to Sacred Scripture (cf. Mt. 15:3-6) and the Church's constant teaching, of the fact that the natural moral law has God as its author, and that man, by the use of reason, participates in the eternal lawn which it is not for him to establish (VS #36).

"Certain moral theologians," the Pope continues, "have introduced a sharp distinction, contrary to Catholic doctrine, between an 'ethical order,' which would be human in origin, and of value for 'this world' alone, and an 'order of salvation' for which only certain intentions and interior attitudes regarding God and neighbor would be significant. This has then led to an actual denial that there exists, in Divine Revelation, a specific and determined moral content, universally valid and permanent. The word of God would be limited to proposing an exhortation . . . which the autonomous reason alone would then have the task of completing with normative directives which are truly 'objective,' that is, adapted to the concrete historical situation" (VS 537).

Notice that the Pope does not accuse these (unnamed) theologians of proposing that some moral norms are naturally known, even by people who are ignorant of revelation. The Catholic Church has always held that some rudimentary precepts of the natural law are known naturally, without instruction afforded by divine positive law. Instead, the Pope accuses certain unnamed theologians of constructing a sphere of human moral choice independent of, and immune from, divine governance. The fact that the human mind is naturally competent to make moral judgments is construed to mean that human practical reason has dominion. From the premise that the human mind has a natural, jurisdictional dominion over "ethics," it would seem to follow that the Church ought to butt out, and use its offices only as a kind of bully pulpit for exhorting the otherwise autonomous human agent. However, for the Church to butt out of "ethics," it would be necessary to get God out of the picture. Some theologians remove God from the picture by arguing that, at creation, God removed Himself. It was God, after all, who created human practical reason, endowing it with a natural competence over moral conduct. By emphasizing human jurisdictional authority over ethics, these theologians perhaps do not go so far as Marcion, for they do not posit an absolute dualism between creation and salvation, or between Law and Gospel. Their opinion more resembles the modern deistic theology, according to which God indeed creates, and what He creates is good; but He hands over jurisdiction of creation to the human mind.

Thus, we find Father Joseph Fuchs contending in his most recent book that: "When in fact, nature-creation does speak to us, it tells us only what it is and how it functions on its own. In other words, the Creator shows us what is divinely willed to exist, and how it functions, but not how the Creator wills the human being qua person to use this existing reality." Fuchs goes on to assert that: "Neither the Hebrew Bible nor the New Testament produces statements that are independent of culture and thus universal and valid for all time; nor can these statements be given by the church or its magisterium. Rather, it is the task of human beings—of the various persons who have been given the requisite intellectual capacity—to investigate what can and must count as a conviction about these responsibilities." In other words, God creates, but he gives no operating instructions. The natural norm will have to be drawn from human reason; or, as Fuchs suggests, those "who have been given the requisite intellectual capacity." I take this to mean academic ethicians and moral theologians.

We should not overlook the fact that this kind of theology was prominent in the dissent of the theologians against <Humanae vitae>. The majority of Paul VI's Commission for the Study of Problems of the Family, Population, and Birth Rate issued a report urging that the Church change her teaching on contraception. The authors of the majority report at least had the honesty to clearly state their theological premise. They reasoned that although the sources of human life are from created nature, the rules for the choice and administration of that natural value fall to human jurisdiction. "To take his own or another's life is a sin," the Majority Report contended, "not because life is under the exclusive dominion of God but because it is contrary to right reason unless there is question of a good or a higher order."

Similarly, Father Fuchs asserts that, "One cannot . . . deduce, from God's relationship to creation, what the obligation of the human person is in these areas or in the realm of creation as a whole." Regarding <Gaudium et Spes>, where the human conscience is spoken of as a <sacrarium> in which we find ourselves responsible before God—<solus cum solo>—Father Fuchs states that the notion that "the human person is illuminated by a light that comes, not from one's own reason . . . but from the wisdom of God in whom everything is created . . . cannot stand up to an objective analysis nor prove helpful in the vocabulary of Christian believers." Father Fuchs' rejection of the Council's teaching on the nature of conscience at least has the virtue of consistency. It follows from his own doctrine that while God creates, he does not govern the human mind. The human mind is a merely natural light, to which there corresponds a merely natural jurisdiction over ethics. In this way, Fuchs and other moral theologians have made it clear that the current debate is not merely an in-house controversy between different schools of ethics. The debate reaches the ground of the possibility of any moral theology. The Pope clearly understands the seriousness of the challenge.

Turning to the injunction in Genesis 2:17, the Pope writes: "By forbidding man to 'eat of the tree of the knowledge of good and evil,' God makes it clear that man does not originally possess such 'knowledge' as something properly his own, but only participates in it by the light of natural reason and of Divine Revelation, which manifest to him the requirements and promptings of eternal wisdom. Law must therefore be considered an expression of divine wisdom . . . " (541). The natural condition of man is one of participation in a higher norm. Man has liberty to direct himself because he is first directed by another.

The Pope makes use of a number of authorities to express the idea of natural law as "participated theonomy." He refers to Ps. 4:6 ("Let the light of your face shine upon us, O Lord"), emphasizing that moral knowledge derives from a divine illumination; from Rom. 2:14 ("The Gentiles who had not the Law, did naturally the things of the Law"), he calls attention to the idea that it is not just by positive law that humans are directed in the moral order. From Gregory of Nyssa, he cites the passage that autonomy is predicated only of a king; from St. Bonaventure, he cites the dictum that conscience does not bind on its own authority, but is rather the "herald of a king." The very existence of conscience, the Pope argues, indicates that we are under a law that we did not impose upon ourselves. Conscience is not a witness to a human power, it is a witness to the natural law. And this is only to say that the natural law is a real law which cannot be equated with our conscience. It was precisely this equation, the Pope notes, that beguiled our first parents, when the serpent in Genesis 3:5 said they could be as gods. What does it mean to be as gods? It means that the human mind is a measuring measure, having authority to impart the measures of moral good and evil.

If there is anything in moral theology on which the Fathers held a unanimous opinion it was that the injunction in Genesis 2:17 summarizes the natural law. As early as the 2nd century, Tertullian characterized this injunction "as the womb of all the precepts of God" a "law unwritten, which was habitually understood naturally." Law did not begin with the law of the Jewish state; though the Decalogue is a divine positive law, it reiterates (in the relation between the two tables) the original ordering reported in Genesis. There never was a sphere of lawless ethics; that is to say, a sphere in which the created mind posits moral norms without any antecedent rule of law. God governed men from the very outset. Indeed, the idea that there is a lawless morality, possessed by men as a kind of natural right, is precisely the sin committed by our first parents. The first law establishes the rule of law itself, which is that men govern only by sharing in divine governance.

Throughout the Scriptures, this rule of law is reiterated. We can have rectitude in matters of ethics only insofar as the mind adheres to God (first by natural law, then through the Law, and finally through grace). Thus, in Mark 12:28, we read: "And one of the scribes . . . asked him, 'Which commandment is the first of all?' Jesus answered (quoting Deut 6:4), 'The first is, 'Hear O Israel: The Lord our God, the Lord is one; and you shall love the Lord your God with all your heart, and with all your soul, and with all your mind, and with all your strength.' The second is this 'You shall love your neighbor as yourself."'

In his commentary on Genesis Against the Manicheans, Augustine insisted that the sin of our first parents was a violation of the very core of the natural law. "This is what they were persuaded to do; to love to excess their own power. And, since they wanted to be equal to God, they used wrongly, that is, against the Law of God, that middle rank by which they were subject to God and held their bodies in subjection. This middle rank was like the fruit of the tree placed in the middle of paradise. Thus they lost what they had received in wanting to seize what they had not received. For the nature of man did not receive the capability of being happy by its own power without God ruling it. Only God can be happy by his own power with no one ruling."

And the very last of the Fathers, St. Bernard, in his sermons on the Canticle of Canticles, referred to the field in Genesis 2, "He claims our earth not as his fief but as his motherland. And why not? He receives from it his Bride and his very body . . . as Lord he rules over it; as Creator, he controls it; as Bridegroom, he shares it." God has dominion over the vineyard, and it is by participating in that dominion that human beings are properly ordered. Given this rule, God goes on to make us shareholders in a more profound way, through a wedding. The mystery hidden for the ages in God is that the human participation in divine governance through law was but a preparation for a wedding feast.

By organizing his discussion of natural law around the injunction in Genesis 2:17, the Pope might seem to be indulging a rather abstract meditation. But this is the bottom line. The Pope understands very clearly that the contemporary dispute over law and liberty is not a dispute merely over this or that vexed issue; what is really at stake today is the effort to claim theological warrant for a principle that is essentially anti-theological: namely, the principle that the human mind has a justifiable claim of jurisdiction over the vineyard. This is why the Church cannot make people happy by loosening the law over this or that area of conduct. A loosened law is not what men crave. They want jurisdiction; not liberty, but plenary authority. This anti-theology is at the heart of that curious phenomenon I mentioned earlier. When theologians, clergy, and laity make the plea for authority to be used to annul the law, and in effect to cancel out authority itself, what they are really requesting is for you to hand back authority which they believe is rightfully theirs. This is why the disputes today over moral theology are so nasty. They resemble nothing so much as ruthless litigation over real estate.


III.

Indeed, real estate is the favorite scriptural metaphor for the problem. The request for dominion rather than covenantal participation, along with the illusion that God is an absentee landlord, is the oldest story on the books. This desire for absolute jurisdictional authority amounts to the same story every time. Consider, for example, the parable of the wicked tenants, which is told in each of the synoptic gospels. In Matthew 21, it is told just before the parable of the marriage feast; in Mark 12, it is given just after the chief priests and the scribes ask Jesus by whose authority he teaches; and in Luke 20, it is given once again just after Jesus' credentials are questioned. In Mark 12.1 and following, the parable is told in this way:

A certain man planted a vineyard and made a hedge around it and dug a place for the wine-fat and built a tower and let it to tenants; and went into a far country. And at the season he sent to the tenants a servant to receive of them the fruit of the vineyard. Who, having laid hands on him, beat him and sent him away empty. And again he sent to them another servant; and him they wounded in the head and used him reproachfully. And again he sent another and him they killed; and many others, of whom some they beat, and others they killed. Therefore, having yet one son, most dear to him, he also sent him unto them last of all, saying: They will reverence my son. But the tenants said to one another: this is the heir. Come let us kill him and the inheritance will be ours. And, laying hold of him, they killed him and cast him out of the vineyard. What therefore will the Lord of the vineyard do? He will come and destroy those tenants and will give the vineyard to others.

This parable is often associated with the canticle of the vineyard in Is. 5. Every Jew of course knew by heart the song of Isaiah: "Let me sing to my friend the song of his love for his vineyard. My friend had a vineyard on a fertile hillside. He dug the soil, cleared it of stones, and planted choice vines in it." But let us consider the parable in connection with the story of that earlier vineyard in Genesis 2-3.

Just as in Genesis 2, where God plants and irrigates the plantation, and in Isaiah 5, where God is said to have established Israel as a vineyard, in Mark 12, once again, it is the owner who plants and establishes the field. The parable makes it clear that he has the strong claim to ownership—<dominium> not a mere <ius>. We notice an important difference between the original plantation and the one in the parable. Adam and Eve were given a most attractive lease over the garden: in exchange for minimal upkeep, they were entitled to enjoy all of its pleasures—provided that they not usurp ownership. This deal or protocovenant is symbolized by the two trees. Whereas in Genesis 2 the plantation is perfect; in the parable, the vineyard is new and untried. The tenants in this parable will have to work. It is a post-Edenic situation.

According to Jewish law, a new vineyard is not recognized as profitable until four whole harvests. The produce of the fourth year are legally "first fruits." Prior to the year of first fruits, tenants perhaps were entitled to a fixed portion of the produce, usually along with some rent. Now, the servant is sent to take the rent. As the parable relates, the tenants beat him and sent him away empty. In ancient Semitic law, giving up of a garment, or the casting off of a shoe, legally signifies releasing a right or a claim. The question is, a right to what? Perhaps the tenants are at first only driving a hard bargain. Until the vineyard is shown to be fruitful, the tenants do not want to pay more than their fair share in a still risky project. Unfortunately, the rights claim seems to escalate.

It was typical in Jewish law that when a thing happens three times it is presumed to be normal. For three successive harvests, no rent was paid: hence a precedent is about to be set. The owner has to come back, lest he forfeit his ownership. In other words, what began as a hard bargain—rights to less rent—ends in a claim over the entire farm. It ends, in fact, in a plot to usurp dominion. They kill the heir. Adam stole dominion and ruined the original partnership; but things have gotten much nastier in the meantime. Adam merely hid—later, his progeny will be more aggressive. Expelled from the garden, and cast into the world, his progeny now figure that they have a more or less permanent lease, with no strings attached. We should not overlook the fact that the scribes and Pharisees are the object of the parable. Although the prophets warned about this, the scribes and Pharisees believed that God had given them the vineyard, and had left it to them to call the shots. The scribes and Pharisees were like deists; they dug in their heels for the long haul. Everything is fine so long as He doesn't come back. And when the Lord of the vineyard returned, they killed him.


IV.

The meaning of the parable for moral theology ought to be clear. Moral theologians must not be lawyers for the tenants. John Paul II writes in <Veritatis splendor>:

Even if moral-theological reflection usually distinguishes between the positive or revealed law of God and the natural law, and, within the economy of salvation, between the "old" and the "new" law, it must not be forgotten that these and other useful distinctions always refer to that law whose author is the one and the same God and which is always meant for man. The different ways in which God, acting in history, cares for the world and for mankind are not mutually exclusive; on the contrary, they support each other and intersect.... God's plan poses no threat to man's genuine freedom; on the contrary, the acceptance of God's plan is the only way to affirm that freedom [VS #45].

Beginning in Genesis 2, and then with the election of Israel, and continuing with the establishment of the Church, and ending in Revelation 22, where the vineyard is finally transfigured by the Tree of Life, God asserts authority over the field. Father de Lubac points out that although God makes "fresh starts in his work and devises fresh methods to bring it to a successful conclusion, it is by no means a fresh work that he undertakes." Even if, according to the parable of the treasure hidden in the field, God eventually had to stop negotiating and buy back the property, repurchasing it with the blood of his own Son, at each stage in this history God offers something covenantal to the tenants. God always makes participation the terms of the deal; men always want unilateral authority.

At every stage, the lease included ample scope for the liberty and creativity of the tenants. Our first parents could eat of every tree but one; they were permitted to name the beasts. They were not permitted, however, to claim absolute dominion. Why? Because what is at stake in the covenant, including that proto-covenant with created nature in Genesis 2, is not merely a deal regarding the administration of external properties. These things were always meant for man. Over them man always had enormous freedom. What was at stake was something internal, the order of justice according to which men act in communion with God. But we cannot act in communion with God if we unilaterally claim the law for ourselves. Again, the prophets warned the rabbinical establishment not to make the Law a mere interpretive tool to be used for their own convenience. And we must admit that this story of the wicked tenants, and the lessons to be drawn from it, is relevant to the life of the Church, and will continue to be relevant until the final reconciliation.

C. S. Lewis urges us to recall the parable of the prodigal son, which reiterates the story of Genesis:

As a young man wants a regular allowance from his father which he can count on as his own, within which he makes his own plans (and rightly, for his father is a fellow creature) so they desired to be on their own, to take care for their own future, to plan for pleasure and for security, to have a <meum> from which, no doubt, they would pay some reasonable tribute to God in the way of time, attention, and love, but which nevertheless, was theirs not His. They wanted, as we say, to "call their souls their own." But that means to live a lie, for our souls are not, in fact, our own. They wanted some corner in the universe of which they could say to God, "This is our business, not yours."

As the Pope notes at the outset of <Veritatis>, a "new situation" has come about. Opposition, even within the seminaries, to Catholic moral doctrine is "no longer a matter of limited and occasional dissent, but of an overall and systematic calling into question of traditional moral doctrine" (VS #4). Whenever we see men demand that authority be used to subvert authority, and that law be used to annul the law, we know that we are close to the heart of the story. Rights claims escalate into a claim over the entire farm.

The message for moral theologians is that they must never pervert their craft by being lawyers for the tenants against the Lord. When they act like lawyers for the tenants, they play the role of the scribes and Pharisees, who also wanted to call the shots by turning the law into their own interpretive tool. Whereas the scribes and Pharisees laid hold of the positive law, twisting it to their own purposes, our moral theologians are more tempted to use the rubric of natural law. The Pope, however, is not going to turn the farm over to the tenants. The farm does not belong to him. The moral theologians insist that he must. Indeed, they threaten to take it anyway. But we already know how this story must end.


This article was taken from the May 1995 issue of "Crisis" magazine.


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