Catholics and the Law
by Michael Foley - January 15, 2010
Reprinted with permission.
Catholics in America have more reasons than ever to worry about the future of the law. The legal practice of the Catholic faith in the United States is already becoming difficult because of funding abortions via our taxes, scuttling our philanthropic organizations rather than supporting same-sex marriage, or paying for the artificial contraception of Catholic institutions' employees. The international scene is no better: Several years ago, the EU tried to deny Europe's Christian roots in its constitution, and two months ago the European Court of Human Rights fined the Italian government for having crucifixes in schoolrooms.
From all this it would be easy to conclude, like Thomas More's excitable son-in-law Roper in A Man for All Seasons, that the law is a cloak for the devil to do his mischief, and that every law in the land should be cut down in the service of God. But such a view overlooks a remarkable fact: Despite some legislators' hostility to Catholic morality, the legal tradition as we know it owes its existence in large part to the Catholic Church.
Catholicism's impact on Western law is considerable. It was the medieval development of canon law that retrieved, transformed, and then represented the long-forgotten Justinian Code of the Roman Empire to emerging European polities in dire need of good juridical models. Specifically, the emergence of ecclesiastical courts after Pope Gregory VII prompted civil courts to imitate and eventually supersede them.
This imitation can be seen in several areas, beginning with the very idea of the rule of law. Although this principle may be found in ancient civilization, it was reintroduced to the West thanks to the medieval Church. Catholicism's belief, for instance, in the reassuring rationality of a divine Logos was instrumental in weaning Europe's barbarian tribes off of such practices as trials by ordeal.
Catholicism is also discernible in the Anglo-American common law tradition. As John C. H. Wu observes, while "the Roman law was a deathbed convert to Christianity, the common law was a cradle Christian." It was this derivation that cultivated the notions of equity, intent, and liability in the West, just as it was the Catholic teaching on marriage that provided the foundations of modern contract law. And when the Catholic conscience confronted the evils of New World colonialism, it responded with the development of international law by 16th-century theologians like the Dominican Rev. Francisco de Vitoria.
The West has borrowed from Catholic patrimony in smaller areas as well. Take, for example, the judge's black robes: The judicial gown hearkens back to clerical garb and the days when all law students, even laymen, dressed as clergy during their matriculation. In other parts of the world, such as Canada and Great Britain, the indebtedness to medieval church custom is even more conspicuous: The wig worn by justices and barristers in Commonwealth countries is a substitute for the skull cap worn by medieval clerics, and when a British magistrate sentences a guilty person to death, he is required to put on his black hat – in imitation of the priest, who was once required to wear his biretta when hearing confession. Even the term "clerk" is an abbreviation of "cleric."
But perhaps the single most important contribution of Catholicism to Western law is the one that is so fundamental, it is the easiest of all to overlook: concern for the victim.
As René Girard argues, ancient myths were based on a collective scapegoating of a randomly chosen victim who was presumed guilty (though often, in fact, innocent). The community was able to project their internal conflicts onto this scapegoat and then purge them from the community; by uniting in their hostility to and ultimate blame of the "fall guy," the community was able to create peace among themselves. This pattern, Girard maintains, can be seen in all cosmogenic myths – stories about the creation of the cosmos – except one.
The Bible decisively breaks this pattern of justifying collective violence against an innocent proxy. Rather than offering another myth, Scripture is in fact a powerful demythologizer, incorporating mythic motifs only in order to expose and discredit them. This can be seen in the Psalms – which, according to Girard, are the world's first poetry written from the perspective of the innocent victim rather than an angry mob. And it is crystal clear in the Gospels, which show how all of the parties involved in Jesus' crucifixion – Caiaphas, Pilate, and Herod – know that Jesus is innocent even as they execute him for political benefit.
Not surprisingly, then, the Christian story had a powerful effect on antiquity's cult of violence. As Girard notes, bloody sacrifices (a ritual reenactment of scapegoating) soon ceased after the spread of the gospel, as it became difficult to justify the sinister practice when its mask had been removed. And in the realm of law, much greater attention was paid to the simple principle that the accused may in fact be innocent, the victim of accidental or sinister forces colluding against him.
But how did Catholicism come to have such an impact on law in the first place? The superficial answer is that St. Peter established his see in the capital of an empire renowned for its law, so it is understandable that the Church of Rome would be influenced by this legacy. Take, for example, canon law's foundational principle that "the supreme law is the salvation of souls," a paraphrase of Cicero. Or the impact of Roman jurisprudence on sacramental theology (the Roman Catholic formulation that a couple's consent makes a marriage is lifted from Ulpian). And the Church continues to borrow from or engage civic law today, even from avowedly secular nations such as the United States.
But the more profound answer is that Catholicism and Western civic power have traditionally shared not only a common passion for justice but a realization that the law, by its very nature, encourages or discourages certain acts; that the repeated performance (or nonperformance) of these acts forms certain habits; that these habits go on to shape men's characters; and that their character in turn determines – more than any other single factor in their lives – their destiny. The goal of civic law properly understood, St. Thomas Aquinas notes in the Summa Theologiae, is the same as that of the Church: to make men good, to encourage good habits and discourage bad ones, so that they may lead morally righteous and happy lives. Some in our culture warn against the dangers of mixing morality and law; but the law is always about morality, and the people quickest to deny this are usually the ones trying to foist their own skewed moral systems on others through the coercion of law.
Catholicism, of course, no longer influences Western law as it used to. Modern legal theory tends to see law as the practice of keeping evildoers at bay or protecting individual rights rather than as an external goad to the Good; hence, it has lost a higher purpose that gave it something in common with Christian belief. With this loss of focus on the moral caliber of citizens has come a distorted view of personal freedom as the highest of all ends.
Moreover, the Catholic Christian concern for the victim has been warped into an ideology of victimhood that, in a bizarre twist, ruthlessly persecutes those supposed "persecutors" of any group that claims victim status. This cult of the victim has become so pronounced in today's society that it is itself a new form of scapegoating, targeting anyone who does not tow the line about victimhood as the culture has defined it. Hence the antipathy against Catholics and anyone who opposes same-sex marriage, for such opposition is seen as an ipso facto persecution of a victimized group. In a supreme irony, the institution that taught the West its concern for victims is now targeted as the enemy of victims.
It's unclear where the current state of affairs will lead us, but I can say that if Roper's pious anarchy is no solution, then More's combined respect for civic law and Catholic conscience must become our model for action. Of course, that also means that things might get worse before they get better.
Michael P. Foley is an associate professor of patristics at Baylor University and the author of Why Do Catholics Eat Fish on Friday? The Catholic Origin to Just About Everything (Palgrave Macmillan, 2005).
