Posner Instructs Catholics on Contraception

Judge Richard Posner has decided to instruct those of us who are Catholics on our faith or, at least, the proper institutional strategy the Church should follow on contraception. Like much of Posner's work, it's interesting, provocative, and a little sloppy.

Money quote:

In 1930, responding to the Anglican Church’s rescission of its prohibition of contraception, Pope Pius VI  made an “infallible” declaration unequivocally reiterating the Catholic Church’s age-old prohibition of the practice, and his declaration was repeated by subsequent popes well into the 1990s. Were the Church now to repudiate that doctrine, it would undermine papal authority. Infallible papal pronouncements would be seen as tentative, revisable, like Supreme Court decisions, which have the force of precedents but can be and occasionally are overruled.

There are some non-trivial factual errors in that statement:

1. Pius VI lived from 1717 to 1799, which would have made it difficult for him to have made a statement -- infallible or otherwise -- in 1930.
2. I assume what Posner has in mind is Pope Pius XI's 1930 encyclical On Christian Marriage.
3. Pius XI's encyclical was not an infallible "declaration" because there is no such thing.
4. One source of infallible teaching in the Catholic Church consist of Papal definitions. As Vatican II put it: the pope "enjoys in virtue of his office, when, as the supreme shepherd and teacher of all the faithful, who confirms his brethren in their faith (Luke 22:32), he proclaims by a definitive act some doctrine of faith or morals. Therefore his definitions, of themselves, and not from the consent of the Church, are justly held irreformable, for they are pronounced with the assistance of the Holy Spirit, an assistance promised to him in blessed Peter." Nothing in Pius XI's encyclical rises to that level. Indeed, by most accounts, there are only two such definitions: The Doctrine of the Immaculate Conception of Mary and The Doctrine of the Assumption of Mary.
5. The other form of infallible teaching of the Church consists of the ordinary universal Magisterium. As Vatican II explained, "Although the individual bishops do not enjoy the prerogative of infallibility, they can nevertheless proclaim Christ’s doctrine infallibly. This is so, even when they are dispersed around the world, provided that while maintaining the bond of unity among themselves and with Peter’s successor, and while teaching authentically on a matter of faith or morals, they concur in a single viewpoint as the one which must be held conclusively. This authority is even more clearly verified when, gathered together in an ecumenical council, they are teachers and judges of faith and morals for the universal Church. Their definitions must then be adhered to with the submission of faith."
6. Although Pius XI's 1930 encyclical is generally regarded as anti-contraception, it was Paul VI's 1968 encyclical Humanae Vitae that is properly regarded as the clearest statement of the Magisterium with respect to contraception. Note that nothing in Humanae Vitae purports to be an infallible definition of doctrine. Because it has been widely accepted by the bishops and subsequent Popes, however, I have no doubt that it qualifies for infallibility as part of the ordinary universal Magisterium.

Now we come to the core question: Does the ordinary universal Magisterium evolve over time? If so, does that call into question the Church's religious authority?

I have no doubt that Papal definitions of doctrine are unchangeable. If a Pope were to disavow the Assumption of Mary, for example, that really would call everything about Church teaching into question.

But what about doctrines that are infallible because the bishops "concur in a single viewpoint as the one which must be held conclusively"? This is a huge category, that some argue encompasses most of the Catechism and much else as well. Does it develop over time?

Judge John Noonan's book A Church That Can and Cannot Change: The Development of Catholic Moral Teaching powerfully argues that Church teaching on moral issues like slavery, religious freedom, and usury has evolved over time (although I'm doubtful of the premises of his argument with respect to usury).

Noonan's argument brought fierce criticism from some, who argued that:

On account of the moral assault against the Church which rages today, therefore, Noonan's piece is both timely and potentially dangerous . . . dangerous because anything which opens a potential for doubt about the authority and reliability of the Church's teachings on moral matters will be exploited at once and ruthlessly by those who wish to undermine the Church's opposition to abortion, artificial birth control, divorce, what are euphemistically called “alternative life styles” (including gay marriage), euthanasia, pre-marital sex and “trial marriage,” artificial insemination, in-vitro fertilization, surrogate motherhood, etc.

Patrick M. O'Neil, A Response to John T. Noonan, Jr. Concerning the Development of Catholic Moral Doctrine, 22 Faith & Reason 59 (Spring-Summer 1996). (One wonders whether we should count Posner among those who wish to undermine the Church's position on lifestyle issues, but that's a topic for another day.)

The debate continues to rage. I don't propose to solve it today. Suffice it to say, I'm inclined to think that Church teaching does develop over time. So did Cardinal Newman, which puts me in pretty good company. (See An Essay on the Development of Christian Doctrine, in which he wrote that "we may fairly conclude that Christian doctrine admits of formal, legitimate, and true developments, that is, of developments contemplated by its Divine Author.")

Let's assume arguendo that the ordinary universal Magisterium does evolve over time. Is Posner (and O'Neill) correct to think that this undermines the Church's authority? When all is said and done, after all, this is Posner's key claim.

I think the answer is no. Noonan gives three reasons to think this is so: (1) "Do parents lose or gain authority with their children when they admit to a mistake in guiding them?" (2) The American judicial system gains authority by admitting its mistakes. Indeed, contrary to Posner's apparent view as expressed by his reference to Supreme Court precedents, Noonan acknowledges that the Supreme Court makes mistakes and that its doctrines develop, but nevertheless fairly asks where "is the prestige of a judicial system higher than in the United States?" (3) No one loses respect for science, which is constantly changing its mind.

Noonan concludes: "Admitting error, the Church would not fare worse than parents, judges, or scientists, except perhaps among those who have conceived of the magisterium as a perfect machine perfectly enunciating moral truth in all ways at all times in all places."

And there is an old quip suggesting that the Church has a well-developed technique for keeping the latter happy. The pope simply prefaces the announcement of a change by observing that “In accordance with the teachings of my predecessors," such and such and so and so.

In sum, we thank Judge Posner for his concern, but assure him it is misplaced.

For a further critique of Posner's post, go here.