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CST & The Law Seminar: Notes on Pope John XXIII's Encyclical Pacem in Terris

This session we read two encyclicals by Pope John XXIII:  Mater et Magistra (Mother and Teacher) and Pacem in Terris (Peace on Earth). In this post, I focus on the latter.

Major Themes

1. The rights of the individual
2. The relationship between authority and individual conscience
3. World peace and disarmament
4. The common good

The Rights of Man

Human rights are natural rights, which are universal and inviolable. (PT ¶ 9)

In part I of the encyclical, Pope John lists a set of those rights in considerable detail. They include:

1. Life
2. A worthy standard of living
3. Respect for the person
4. Education and training
5. Freedom of religion
   1. Although Pope John treats freedom of religion as a basic Christian precept, many would argue that his papacy marks a major shift at least in emphasis. In particular, some claim that” against centuries of Catholic thought and practice asserting the primacy of truth over conscience in religious matters, John simply asserted, without laying out detailed arguments, that civil authorities have an obligation to protect the freedom of their citizens to worship and practice religion as they see fit in their own conscientious belief.”
   2. For an interesting analysis of these questions, written shortly after Pacem in Terris, see John Courtney Murray’s 1963 essay On Religious Liberty.
6. Family
7. To pursue priestly vocations
8. Safe and moral working conditions
9. The right to unionize
10. The right to emigrate and immigrate
11. The right to participate in public affairs
12. Protection of one’s rights from arbitrary oppression

Notice that the Pope’s outline of basic human rights includes both negative rights and positive rights. (I have elsewhere expressed a certain skepticism about positive rights, but that discussion is for another time.)

Unlike many accounts of human rights, Pope John explicitly links those rights to corresponding duties:

Thus, for example, the right to live involves the duty to preserve one's life; the right to a decent standard of living, the duty to live in a becoming fashion; the right to be free to seek out the truth, the duty to devote oneself to an ever deeper and wider search for it. (PT ¶ 29)

Human dignity thus encompasses both the right to “act freely” and the duty to do so “responsibly.” (PT ¶ 34)

Pope John concludes the first part of the encyclical with a number of observations about the state of the world as it then was:

1. “… a progressive improvement in the economic and social condition of working men. They began by claiming their rights principally in the economic and social spheres, and then proceeded to lay claim to their political rights as well. Finally, they have turned their attention to acquiring the more cultural benefits of society.” (PT ¶ 40)
2. “… the part that women are now playing in political life is everywhere evident. ... Women are gaining an increasing awareness of their natural dignity. Far from being content with a purely passive role or allowing themselves to be regarded as a kind of instrument, they are demanding both in domestic and in public life the rights and duties which belong to them as human persons.” (PT ¶ 41)
3. “Since all peoples have either attained political independence or are on the way to attaining it, soon no nation will rule over another and none will be subject to an alien power.” (PT ¶ 42) This seems to clearly be an affirmative reference to the process of decolonization that was underway at that time.
4. A growing acceptance of human equality and, in particular, disapproval of racial discrimination.

The Individual and the State

Part II of Pacem in Terris accepts the legitimacy of the state but insists that the state derives its authority from God. (PT ¶ 45)

We must … reject the view that the will of the individual or the group is the primary and only source of a citizen's rights and duties, and of the binding force of political constitutions and the government's authority. (PT ¶ 78)

Which raises the questions: What happens when a state embraces secularism as a key ordering principle? What happens when the majority of citizens reject religion and embrace secularism?

As with Mater et Magistra, Pacem in Terris embraces the “both/and” of subsidiarity and solidarity. Individuals and “intermediate groups” are rightfully free but they also have a duty to contribute to the common welfare. (PT ¶ 53) We see this again in Part IV of the encyclical, which deals with international relations, where Pope John wrote:

The same principle of subsidiarity which governs the relations between public authorities and individuals, families and intermediate societies in a single State, must also apply to the relations between the public authority of the world community and the public authorities of each political community. (PT ¶ 140)

For those of us who are lawyers, the three paragraphs (¶¶ 70-72) dealing with the social role of the law are especially pertinent (if a tad cryptic):

There can be no doubt that a State juridical system which conforms to the principles of justice and rightness, and corresponds to the degree of civic maturity evinced by the State in question, is highly conducive to the attainment of the common good.

And yet social life is so complex, varied and active in this modern age, that even a juridical system which has been established with great prudence and foresight often seems inadequate to the need.

Moreover, the relations of citizens with each other, of citizens and intermediate groups with public authorities, and the relations between public authorities of the same State, are sometimes seen to be of so ambiguous and explosive a nature, that they are not susceptible of being regulated by any hard and fast system of laws.

In such cases, if the authorities want to preserve the State's juridical system intact—in itself and in its application to specific cases—and if they want to minister to the principal needs of society, adapt the laws to the conditions of modern life and seek solutions to new problems, then it is essential that they have a clear idea of the nature and limits of their own legitimate spheres of action. Their calmness, integrity, clear sightedness and perseverance must be such that they will recognize at once what is needed in a given situation, and act with promptness and efficiency.

Relations Between States

Part III turns to inter-state relations. At the outset, there is a clear rejection of the ideologies that underlay colonialism: “Truth calls for the elimination of every trace of racial discrimination, and the consequent recognition of the inviolable principle that all States are by nature equal in dignity. Each of them accordingly has the right to exist, to develop, and to possess the necessary means and accept a primary responsibility for its own development.” (PT ¶ 86) The following paragraphs tick off in detail why the various justifications invoked by colonialists have no grounding in morality or natural law.

The then-recent experience of World War II is obvious in several portions of this section, including:

1. Pope John’s insistence that international disputes “be settled in a truly human way, not by armed force nor by deceit or trickery.” (PT ¶ 93)
2. His insistence that “any attempt to check the vitality and growth of these ethnic minorities is a flagrant violation of justice; the more so if such perverse efforts are aimed at their very extinction,” which is a clear reference to the Holocaust and other genocidal programs during the war. (PT ¶ 95)
3. Relatedly, there is what I take to be a reference to (among other things) Zionism and the formation of the state of Israel, as the Pope mentions a “political trend (which since the nineteenth century has become widespread throughout the world and has gained in strength) as a result of which men of similar ethnic background are anxious for political autonomy and unification into a single nation.” (PT ¶ 94)
   1. There is also a “cautionary note” in which Pope John states that some “minority groups, in reaction, perhaps, to the enforced hardships of their present situation, or to historical circumstances, frequently tend to magnify unduly characteristics proper to their own people.” (PT ¶ 97)
   2. This is a somewhat odd passage. It seems unlikely to be directed specifically at Jews, as Pope John did so much to reconcile Catholics and Jews.
   3. In context, the passage seems to be cautioning against ethnocentrism whether it is practiced by majority or minority groups within a state. We are all part of the same human family.

Finally, Pope John takes note of the fundamental change effected by the development and use of nuclear weapons. (PT ¶¶ 126-29) Nuclear weapons should be banned, as should testing of those weapons. (PT ¶¶ 111-12) The potential for catastrophic destruction called into question the whole concept of just war.

The World Community

The fourth part of Pacem in Terrisdeals with the then-new United Nations and, more broadly, the world community. Pope John argues that no single nation can provide the common good universally, instead it must be joint effort of the entire world community. (PT ¶¶ 132-35)

Pastoral Exhortations

The closing part of Pacem in Terrisconsists of series of exhortations directed mainly at the laity. The Pope encourages participation in public life. (PT ¶ 146) In passing, one wonders what Pope John would have made of The Benedict Option?

Ecumenism was a principal concern of Pope John throughout his papacy, so it is not surprising that he devoted considerable attention to the relations between Catholics and non-Catholics in achieving social justice.

CST & The Law Seminar: Notes on Pope John XXIII's Encyclical Mater et Magistra

This session we read two encyclicals by Pope John XXIII:  Mater et Magistra (Mother and Teacher) and Pacem in Terris (Peace on Earth).

The world had radically changed in the seventy years between Pope Leo XIII began the modern era of Catholic social teaching with his encyclical Rerum Novarum,which we discussed last time. Two world wars, the Great Depression, the beginning of the Cold War, the beginning of decolonization, and huge technical advances in a host of fields. An event I think many overlook or underestimate, moreover, was the signing of the Lateran Treaty between the Holy See and the Kingdom of Italy. It ensured the political independence of the Vatican, while freeing the Popes to travel the world as ambassadors of the faith.

All of these developments find voice in the two encyclicals. In this post, I focus on Mater et Magistra.

Mater et Magistra

William F. Buckley, Jr., supposedly quipped “Mater si, magistra no,” which translates literally as "Mother yes, teacher no.” In the Compendium of the Social Doctrine of the Church, however, the Vatican stated that: “Insofar as it is part of the Church's moral teaching, the Church's social doctrine has the same dignity and authority as her moral teaching. It is authentic Magisterium, which obligates the faithful to adhere to it.” (CSD ¶ 80) Does this mean that lay Catholics may not criticize the Social Teaching? Does it mean that the laity has no role in operationalizing the principles of Catholic Social Thought in law and policy?

No. To the contrary, it is the task of Catholic intellectuals to exercise critical reflective judgment with respect to society, the Church, and the relationship between the two. On course, there is a fine line between the exercise of critical evaluative judgment and dissent.[1] When it comes to issues such as the degree of state intervention in the economy, however, the Church outlines basic principles but recognizes substantial latitude with respect to their translation into public policy. Nowhere, for example, does the Church state what percentage of the economy should by controlled by the state, thus leaving a great deal of room for prudential judgment by Catholics. In promulgating their controversial pastoral letter on the economy, for example, the Bishops expressly acknowledged that their “prudential judgments” about specific policy recommendations were not made “with the same kind of authority that marks our declarations of principle.”[2] Likewise, Pope John Paul II explicitly stated that the Catholic “church has no models to present” with respect to the economy and the state.[3]

The Compendium thus posits that:

[CST] is not a prerogative of a certain component of the ecclesial body but of the entire community; it is the expression of the way that the Church understands society and of her position regarding social structures and changes. The whole of the Church community — priests, religious and laity — participates in the formulation of this social doctrine, each according to the different tasks, charisms and ministries found within her. (CSD ¶ 79)

Implicit in Buckley’s quip is the view held by many that Mater et Magistra marked a sharp discontinuity with prior Church teaching.

In the first part of Mater et Magistra, Pope John reviews Rerum Novarum(1891) and Quadragesimo Anno(1931). In his view, Rerum Novarumwas particularly concerned with rebutting the notion that economic life was exclusively contractual. It rejected the idea that there was no correlation between economics and morality.

Pope John argues that Quadragesimo Anno (literally "In the 40th Year") was issued by Pope Pius XI to reaffirm “the right and duty of the Catholic Church to work for an equitable solution of the many pressing problems weighing upon human society.” (M&M ¶ 28). Pope John further specified two critical teachings to be drawn from Quadragesimo Anno: (1) The “supreme criterion in economic matters … must not be the special interests of individuals or groups, nor unregulated competition, economic despotism, national prestige or imperialism, nor any other aim of this sort.” (M&M ¶ 38) (2) “… man's aim must be to achieve in social justice a national and international juridical order, with its network of public and private institutions, in which all economic activity can be conducted not merely for private gain but also in the interests of the common good.” (M&M ¶ 38).

While both of these sections implicitly purport to be simply a restatement of what those earlier encyclicals stated, many critics saw a shift towards acceptance of the socialization of economic activity and the power of the state. On the other hand, other commentators argued for the essential continuity between Rerum Novarum and Mater et Magistra.

Whether or not Mater et Magistra marks a discontinuity or merely an evolution in CST, there is no doubt that it marked a change in tone and world view. Indeed, contemporary commentary on Mater et Magistra emphasized the shift in tone from hostility towards modernity and economic class warfare to a more modern and balanced appraisal.

Mater et Magistra: Major Themes

1. The Church is properly concerned not only with eternal questions, but also “he exigencies of man's daily life, with his livelihood and education, and his general, temporal welfare and prosperity.” (M&M ¶ 3)
2. The legitimate role of the Church in addressing social justice.
3. Mater et Magistrais intended to affirm the teachings of those encyclicals but also to update them for the radically changed conditions of the early 1960s.
4. Private property and initiative are worthy and deserving of priority, but the public authorities have a role to play not only in promoting economic growth but also in ensuring social justice. (M&M ¶¶ 51-52)
5. The Church embraces the principle of subsidiarity:
   1. Pope John embraces Quadragesimo Anno’s definition of subsidiarity: “Just as it is wrong to withdraw from the individual and commit to a community what private enterprise and industry can accomplish, so too it is an injustice, a grave evil and a disturbance of right order, for a larger and higher association to arrogate to itself functions which can be performed efficiently by smaller and lower societies. Of its very nature the true aim of all social activity should be to help members of the social body, but never to destroy or absorb them." (M&M ¶ 53)
   2. For example, with respect to state ownership of property, the Pope cautioned that: “The State and other agencies of public law must not extend their ownership beyond what is clearly required by considerations of the common good properly understood, and even then there must be safeguards.” (M&M ¶ 117)
6. The common good is embraced at both the national and international level:
   1. “On the national level [the demands of the common good] include: employment of the greatest possible number of workers; care lest privileged classes arise, even among the workers; maintenance of equilibrium between wages and prices; the need to make goods and services accessible to the greatest number; elimination, or at least the restriction, of inequalities in the various branches of the economy—that is, between agriculture, industry and services; creation of a proper balance between economic expansion and the development of social services, especially through the activity of public authorities; the best possible adjustment of the means of production to the progress of science and technology; seeing to it that the benefits which make possible a more human way of life will be available not merely to the present generation but to the coming generations as well.” (M&M ¶ 79)
   2. “The demands of the common good on the international level include: the avoidance of all forms of unfair competition between the economies of different countries; the fostering of mutual collaboration and good will; and effective co-operation in the development of economically less advanced communities.” (M&M ¶ 80)
7. Human dignity is recognized as a foundational principle of CST. Indeed, it has been suggested that “Mater et magistra is essentially an application of human dignity to various human institutions such as property, government, and work.”
   1. “John XXIII explains that the dignity of workers and the development of their personalities entails three basic principles in the workplace: 1) the principle of equity which he translates into just remuneration; 2) the principle of participation which he translates into more involvement in the production process; and 3) the principle of the common good which he translates into the production of useful and needed products.”
   2. As one of my students aptly observed, “Subsidiarity is tied into the idea of human dignity; that people are able to live the fullest, most spiritual life possible when they have more autonomy and control over their own lives and are free from coercive oversight of the state. Subsidiarity promotes this ideal by encouraging people to become more involved in their community and to work in solving problems with their neighbors; this creates bonds of mutual trust and good will among one another, which is one of the principles Catholic Social Thought seeks to encourage.”

Mater et Magistra: Miscellaneous Notes

1. In light of recent proposals by the U.K. Labour Party to give workers 10% of the stock of companies, it is interesting to note that Pope John endorsed the idea that “workers should be allocated shares in the firms for which they work, especially when they are paid no more than a minimum wage” (M&M ¶ 75), so as to ensure that “a just share only of the fruits of production be permitted to accumulate in the hands of the wealthy, and that an ample sufficiency be supplied to the workers." (M&M ¶ 77)
   1. ESOPs and profit sharing plans, of course, are alternatives ways of accomplishing that goal.
2. In his extensive discussion of the rights and duties of workers, Pope John addresses not only their rights to fair wages, but also their rights to “participate” in the enterprise. The form of such participation, however, is left undefined. (M&M ¶¶ 91-96) It thus cannot be said, for example, that the Pope endorsed codetermination or other specific forms of employee participation.
3. The Pope’s discussion of private property is a classic example of the Catholic “both/and” approach to issues.
   1. As Bishop Robert Barron explains, the Catholic “both/and” “celebrates the union of contraries—grace and nature, faith and reason, Scripture and tradition, body and soul in a way that the full energy of each opposing element remains in place.”
   2. As Bishop Barron elsewhere explains, CST thus embraces both subsidiarity and solidarity. “Solidarity without subsidiarity can easily devolve into a kind of totalitarianism whereby “justice” is achieved either through outright manipulation and intimidation or through more subtle forms of social engineering. But subsidiarity without solidarity can result in a society marked by rampant individualism, a Gordon Gekko “greed is good” mentality, and an Ayn Rand/Nietzschean “objectivism” that positively celebrates the powerful person’s dominance of the weak.”
   3. “Catholic social theory involves the subtle balancing of these two great principles so as to avoid these two characteristic pitfalls. It does, for example, consistently advocate the free market, entrepreneurial enterprise, profit-making; and it holds out against all forms of Marxism and extreme socialism. But it also insists that the market be circumscribed by clear moral imperatives and that the wealthy realize their sacred obligation to aid the less advantaged.”
   4. “Not one or the other, nor some bland compromise between the two, but both, advocated with equal vigor.”
4. Mater et Magistra devotes considerable attention to the then-emerging issue of international aid and development. The process of decolonization was creating many new countries, most of which were afflicted by rampant poverty.

CST & The Law Seminar: Notes on Pope Leo XIII's Encyclical Rerum Novarum (1891)

Rerum Novarum: Major Themes

1. Work and the economy, with special emphasis on the respective rights and duties of capital and labor.
2. The nature of the common good and the obligation to promote it.
3. The role of the state in society.

Work and the Economy

Pope Leo XIII was deeply concerned with the state of workers. In that time, he argued, “working men have been surrendered, isolated and helpless, to the hardheartedness of employers and the greed of unchecked competition.” (3)

At the same time, however, Leo abhorred socialism, writing of socialists that “They are, moreover, emphatically unjust, for they would rob the lawful possessor, distort the functions of the State, and create utter confusion in the community.” (4) Rerum novarumoffers a qualified defense of private property. On the one hand, Leo contends that the right to private property is based on natural law. (6)[1]On the other hand, however, Leo cautions that wealth must be used for the welfare of all, especially the indigent.

True, no one is commanded to distribute to others that which is required for his own needs and those of his household; nor even to give away what is reasonably required to keep up becomingly his condition in life, "for no one ought to live other than becomingly.” But, when what necessity demands has been supplied, and one's standing fairly taken thought for, it becomes a duty to give to the indigent out of what remains over. (22)

Returning to the plight of the worker, Leo advocated both state intervention in the economy and collective action by workers.

• “Daily labor … should be so regulated as not to be protracted over longer hours than strength admits.” (42)
• “And, in regard to children, great care should be taken not to place them in workshops and factories until their bodies and minds are sufficiently developed. For, just as very rough weather destroys the buds of spring, so does too early an experience of life's hard toil blight the young promise of a child's faculties, and render any true education impossible.” (42)
• “The most important of all [beneficial societies] are workingmen's unions, for these virtually include all the rest. History attests what excellent results were brought about by the artificers' guilds of olden times. They were the means of affording not only many advantages to the workmen, but in no small degree of promoting the advancement of art, as numerous monuments remain to bear witness. Such unions should be suited to the requirements of this our age - an age of wider education, of different habits, and of far more numerous requirements in daily life.” (49)

In speaking of the right of workers to associate together, however, Leo was not talking about modern trade unions:

Associations of every kind, and especially those of working men, are now far more common than heretofore. As regards many of these there is no need at present to inquire whence they spring, what are their objects, or what the means they imply. Now, there is a good deal of evidence in favor of the opinion that many of these societies are in the hands of secret leaders, and are managed on principles ill - according with Christianity and the public well-being; and that they do their utmost to get within their grasp the whole field of labor, and force working men either to join them or to starve. Under these circumstances Christian working men must do one of two things: either join associations in which their religion will be exposed to peril, or form associations among themselves and unite their forces so as to shake off courageously the yoke of so unrighteous and intolerable an oppression. No one who does not wish to expose man's chief good to extreme risk will for a moment hesitate to say that the second alternative should by all means be adopted. (54)

Instead, he seems to have had in mind some form of Catholic workers’ association, apparently to be modeled on the medieval guild system.

It was only later Papal documents, such as Pope Pius X’s encyclical letter Singulari quadam, that more explicitly refer to organizations akin to modern trade unions (sydicatus):

… where either the laws of a country, or certain special economic institutions, or that deplorable dissension of minds and hearts so widespread in contemporary society and an urgent necessity of combating with united purpose and strength the massed ranks of revolutionarists, have prevented Catholics from founding purely Catholic labor unions. Under these conditions, Catholics seem almost forced to join secular labor unions. These unions, however, should always profess justice and equity and give Catholic members full freedom to care for their own conscience and obey the laws of the Church. It is clearly the office of bishops, when they know that these associations are on account of circumstances necessary and are not dangerous to religion, to approve of Catholic workers joining them, keeping before their eyes, however, the principles and precautions laid down by Our Predecessor, Pius X of holy memory.[24] Among these precautions the first and chief is this: Side by side with these unions there should always be associations zealously engaged in imbuing and forming their members in the teaching of religion and morality so that they in turn may be able to permeate the unions with that good spirit which should direct them in all their activity. As a result, the religious associations will bear good fruit even beyond the circle of their own membership. (Quadragesimo Anno, 35)

The Common Good

The English translationof Rerum Novarumrefers explicitly to the “common good” five times, but nowhere defines it. Leo probably felt it unnecessary to do so, because the term can be traced in Catholic theology back through Aquinas to Augustine.

The Compendium defines it as “the sum total of social conditions which allow people, either as groups or as individuals, to reach their fulfilment more fully and more easily.” (164)

Pope Leo acknowledged a role for the State in advancing the common good (so much for the libertarian night watchman state), observing that “it lies in the power of a ruler to benefit every class in the State, and amongst the rest to promote to the utmost the interests of the poor; and this in virtue of his office, and without being open to suspicion of undue interference - since it is the province of the commonwealth to serve the common good.” (32)

Leo also posits that all citizens “can and ought to contribute to that common good in which individuals share so advantageously to themselves,” while acknowledging that the ways on which each individual does so can and must vary by their condition and that of society. (34)

Leo also returns to the question of private property, explicitly rejecting the socialist notion that the common good can justify “any individual to seize upon that which belongs to another, or, under the futile and shallow pretext of equality, to lay violent hands on other people's possessions.” He therefore condemned radical revolutionaries “who are imbued with evil principles and eager for revolutionary change, whose main purpose is to stir up disorder and incite their fellows to acts of violence.” (38)

The Role of the State in Society

Church and State

Lucia Silecchia observes that:

The Church sees its place as neither beholden to nor bound by any particular order. Instead, while contributing a moral framework of law and policy making, Catholic social teaching remains hospitable to a wide variety of political regimes and parties.

How wide? In other words, are there political regimes and parties the Church views as illegitimate?

Rerum Novarumdoes not speak to this question, but its principles lay the framework on which later encyclicals build a somewhat qualified preference for democracy and opposition to totalitarianism and dictatorships.

Subsidiarity

Lucia Silecchia observes that:

… Octogesima Adveniensteaches, "[t]he domain of politics is wide and comprehensive, but it is not exclusive," [so] the Church's teaching is directed to all the institutions that can shape society. These include, but are not limited to, families, religious communities, schools, social and fraternal organizations, private charitable organizations, lay professionals in all fields, and, in some ways most importantly, individuals. (284)

Although Rerum Novarumdoes not explicitly discuss subsidiarity by name, the concept is clearly embedded in it. Pope Leo XIII emphasizes, for example, that “the State must not absorb the individual or the family; both should be allowed free and untrammelled action so far as is consistent with the common good and the interest of others.” (35) Later he again touches on what became the principle of subsidiarity, remarking that “Private societies, … although they exist within the body politic, and are severally part of the commonwealth, cannot nevertheless be absolutely, and as such, prohibited by public authority.” (51)

Practical Applications

I posed two questions to the class that attempted to get them thinking about how CST can be used to understand public policy questions. In part, however, I did do to illustrate how CST is often a blunt instrument for answering specific questions. It’s much better at laying out broad principles.

• At most corporations today, the chief executive officer (CEO) earns vastly more than the median worker. To cite just a couple of examples, Kohl’s reported a pay ratio of 1,264 to 1, with the median worker making $8,975 compared to the CEO’s pay of $11.3 million. Under Armour reported a pay ratio of 378 to 1, with median employee paid $10,686 a year. What would Pope Leo likely have said about such disparities? Does Rerum Novarum suggest any policy responses to such disparities?

I don’t think Pope Leo would have condemned inequalities of wealth out of hand. “It must be first of all recognized that the condition of things inherent in human affairs must be borne with, for it is impossible to reduce civil society to one dead level.” (17) Instead, Leo wrote that:

The following duties bind the wealthy owner and the employer: not to look upon their work people as their bondsmen, but to respect in every man his dignity as a person ennobled by Christian character. … His great and principal duty is to give every one what is just. Doubtless, before deciding whether wages axe fair, many things have to be considered; but wealthy owners and all masters of labor should be mindful of this - that to exercise pressure upon the indigent and the destitute for the sake of gain, and to gather one's profit out of the need of another, is condemned by all laws, human and divine. To defraud any one of wages that are his due is a great crime which cries to the avenging anger of Heaven. (20)

Rerum Novarum is thus less concerned with the CEOs wages than with ensuring that all workers are paid a just wage.

Having said that, however, Pope Leo introduces the important CST concept of stewardship:

… those whom fortune favors are warned that riches do not bring freedom from sorrow and are of no avail for eternal happiness, but rather are obstacles; that the rich should tremble at the threatenings of Jesus Christ—threatenings so unwonted in the mouth of our Lord—and that a most strict account must be given to the Supreme Judge for all we possess. The chief and most excellent rule for the right use of money is one the heathen philosophers hinted at, but which the Church has traced out clearly, and has not only made known to men's minds, but has impressed upon their lives. It rests on the principle that it is one thing to have a right to the possession of money and another to have a right to use money as one wills. Private ownership, as we have seen, is the natural right of man, and to exercise that right, especially as members of society, is not only lawful, but absolutely necessary. "It is lawful," says St. Thomas Aquinas, "for a man to hold private property; and it is also necessary for the carrying on of human existence."" But if the question be asked: How must one's possessions be used? - the Church replies without hesitation in the words of the same holy Doctor: "Man should not consider his material possessions as his own, but as common to all, so as to share them without hesitation when others are in need. Whence the Apostle with, ‘Command the rich of this world... to offer with no stint, to apportion largely.’" True, no one is commanded to distribute to others that which is required for his own needs and those of his household; nor even to give away what is reasonably required to keep up becomingly his condition in life, "for no one ought to live other than becomingly." But, when what necessity demands has been supplied, and one's standing fairly taken thought for, it becomes a duty to give to the indigent out of what remains over. "Of that which remaineth, give alms." (22)

In sum, the Pope reminds the wealthy that "it is easier for a camel to go through the eye of a needle than for a rich man to enter the kingdom of God.”

• What limitations on the right of private property would Pope Leo regard as legitimate? Consider, for example, the following: Environmental regulations that prevent a landowner from damaging the habitat of endangered species? Trespassing laws that allow landowners to expel the homeless from their property? In the United Kingdom, the Countryside and Rights of Way Act 2000 gave hikers a conditional right to access most areas of uncultivated private land.

This question is really designed to tee up for future classes the question of whether Pope Leo XIII’s strong defense of private property is something of an outlier in CST. Aquinas’ defense of private property rested on prudential grounds rather than natural law. Post-Rerum Novarumpapal encyclicals, moreover, made clear that the right to possess private property is limited. Pope John Paul II, for example, wrote in Laborem Exercensthat:

Christian tradition has never upheld this right as absolute and untouchable. On the contrary, it has always understood this right within the broader context of the right common to all to use the goods of the whole of creation: the right to private property is subordinated to the right to common use, to the fact that goods are meant for everyone. (14)

The Compendium thus affirms that “regulated interventions are necessary” to ensure the just use of goods. (173)

[1]Interestingly, although the title of the encyclical invokes the “new things” of the late 19th Century, Pope Leo’s analysis of private property (5-9) seems far more concerned with property in an agrarian society (i.e., land) than with the burgeoning industrial society of the time.

CST & The Law Seminar: Does Catholic Social Thought have a legitimate role in legal and public policy discussions in a liberal democracy?

In the social teaching, the Church speaks not just to the faithful but to the entire world. As the Compendiumexplains:

The text has been presented in such a way as to be useful not only from within (ab intra), that is among Catholics, but also from outside (ab extra). In fact, those who share the same Baptism with us, as well as the followers of other Religions and all people of good will, can find herein fruitful occasions for reflection and a common motivation for the integral development of every person and the whole person.

But we live in a secular society, one of whose foundational principles is claimedto be a wall of separation between church and state. Does the teaching of one Church have any relevance to us as citizens and, in particular, as lawyers who by the nature of our profession take a leading role in making law and setting public policy?

Obviously, these are highly controversial issues on which much ink has been spilled. We could spend an entire year on them. Because we only had about an hour to discuss it, however, I had the students read just two articles touching on these questions:

1. Avery Cardinal Dulles, Catholic Social Teaching and American Legal Perspective, 30 Fordham Urban Law Journal 277 (2002)
2. Lucia A. Silecchia, Catholic Social Teaching and Its Impact on American Law, 1 Journal of Catholic Social Thought 277 (2004)

Perhaps not surprisingly, given the nature of this course, both offer affirmative answers to those questions.

Silecchia offers a very practical justification for the Church’s social role; namely, it’s “hands-on experience” with a multitude of social ills in its role as “the single largest non-governmental provider of social services.” (292) Few other social actors can match that body of knowledge and practical wisdom.

He also offers a very practical reason for allowing citizens and lawmakers to consider their religious beliefs when acting in the public square: “it would be difficult for a religious legislator or, for that matter, for a religious voter, to make an honest assessment of solutions without consulting his or her religious values for guidance.” It’s very hard if not impossible to compartmentalize one’s thinking in that way.

CST& the Law Seminar: Introduction to Catholic Social Thought

What does CST mean for those of us who are practicing Catholics? 

1. What is the magisterium of the Catholic Church?
   1. It is the teaching authority of the Church. In the exercise of that office, the Church develops Tradition.
   2. Cathechism ¶ 85: “The task of giving an authentic interpretation of the Word of God, whether in its written form or in the form of Tradition, has been entrusted to the living, teaching office of the Church alone. Its authority in this matter is exercised in the name of Jesus Christ.” This means that the task of interpretation has been entrusted to the bishops in communion with the successor of Peter, the Bishop of Rome.”
2. Catholics are required to assent to the magisterium, but there are different degrees of assent.
   1. When the Pope speaks ex cathedraor the Church speaks as a General Council, Catholics are obliged to give “full assent of faith.” As to the ordinary teaching of the Church, Catholics are required to give religious assent. What’s the difference?
      1. Ordinary teachings allow for the possibility of error and so ordinary assent allows for the possibility of dissent.
3. Is CST part of the magisterium?
1. The Compendium states: “Insofar as it is part of the Church's moral teaching, the Church's social doctrine has the same dignity and authority as her moral teaching. It is authentic Magisterium, which obligates the faithful to adhere to it.” (80)
2. But the Church recognizes a special competence of the laity with respect to social problems: “It is not a prerogative of a certain component of the ecclesial body but of the entire community; it is the expression of the way that the Church understands society and of her position regarding social structures and changes. The whole of the Church community — priests, religious and laity — participates in the formulation of this social doctrine, each according to the different tasks, charisms and ministries found within her.” (75)
3. One commentator observes: “We are bound to obey in those social issues that are strictly defined (abortion, marriage, pornography, contraception, etc.). However, in the great majority of social, political, and economic questions, the Church gives principles that allow the laity to apply them as best they can, according to their understanding of the problem.”
4. So, does the Church expect practicing Catholics to have CST in mind when they act as citizens?
   1. “The lay faithful are called to identify steps that can be taken in concrete political situations in order to put into practice the principles and values proper to life in society.” (568)
5. Do catholic lawyers have an exclusive role in making CST part of society? No. Silecchia observes that “it is telling that this body of doctrine is not called ‘Catholic legal teaching,’ but is, instead, called ‘Catholic social teaching.’" Lucia A. Silecchia, Catholic Social Teaching and Its Impact on American Law, 1 Journal of Catholic Social Thought 277 (2004)

One question to consider as we examine CST is whether any American political party is fully consistent with Church teachings.[1]

Teaching "Catholic Social Thought and the Law" at UCLA School of Law: First of a Series

This year I'm again teaching a seminar at UCLAW on "Catholic Social Thought, the Law, and Public Policy." Here's the course description:

In contemporary American culture there is a widespread assumption that religion is something private, something one does with one's leisure time, and that it ought not to affect the way one acts in the public square or market place. Catholic social teaching, however, explicitly claims a place in the public square. As the National Conference of Catholic Bishops explained in their Pastoral Letter on Catholic Social Teaching and the U.S. Economy (1986), they wrote that letter not merely to instruct the faithful but also “to add our voice to the public debate” over economic justice. Likewise, many Papal encyclicals are not mere theological documents, but also serve as position paper addressed to policymakers.

Catholic social thought is particularly relevant to law and the practice of law. As Avery Cardinal Dulles observed, law “cannot be adequately taught without reference to the purposes of society and the nature of justice, which law is intended to serve.” In turn, as he also argued, “the role of law and its place in a well-ordered society has been studied in depth for many centuries in Catholic social theory.” Accordingly, the premise of this seminar is that whether one is a follower of Catholicism, some other religion, or no religion, Catholic social thought provides important insights for making and practicing law.

Students of all religions—or of no religion—are invited and welcome to engage with the material respectfully, thoughtfully, and critically.

The course will focus on the primary documents of Catholic social thought, principally Papal Encyclicals, rather than secondary sources. The goal is for students to directly engage the source material.

We're using Catholic Social Thought: Encyclicals and Documents from Pope Leo XIII to Pope Francis as our text. It's a solid collection of the primary documents with a modest amount of helpful commentary to contextualize the readings.

Why have I structured the seminar this way?

There are three ways of studying Catholic Social Thought (CST), a.k.a. Catholic Social Teaching. First, we might approach it thematically, by which I mean emphasizing the major themes that run through the entire body of encyclicals and other documents that make up CST’s corpus. Scholars have identified seven such major themes or principles:

1. Life and the Dignity of the Human Person.
2. The Call to Family, Community, and Participation.
3. Human Rights and Responsibilities.
4. The Preferential Option for the Poor.
5. The Dignity of Work and the Rights of Workers.
6. Solidarity with Others Across Racial, National, Social, and Other Borders.
7. Care for God’s Creation.

Second, we might seek to operationalize CST by focusing on how it speaks to specific issues. The Compendium of the Social Doctrine of the Church takes this approach, expounding the social doctrine across numerous distinct issues of modern life.

Third, we might directly engage the primary documents, especially the critical papal encyclical. This is the approach I’ve chosen. The other approaches are useful, but only if you have a foundation on which to build them. Attempting them without first knowing the foundational documents would be like trying to decide constitutional law questions without ever having read the Constitution.  Put another way, focusing on the primary documents gives us a perspective that has not been filtered through someone else’s biases and priorities.

Another important reason for focusing on primary documents is that CST rarely offers specific policy proposals. Instead, it offers broad principles and precepts, which often prove to be blunt instruments when making fine legal or policy distinctions. If you ask, “should the law require corporate disclosure quarterly or semi-annually,” CST will give you only broad statements about the economy in reply. But broad principles laid out in the primary documents do provide a moral and ethical foundation upon which to build. Put another way, a house built on sand will not stand. Before you can do high level reasoning you must have a firm foundation on which to build.

I'll be posting about this course a lot, so I have set up a new posts category CST & The Law Seminar. I hope you'll find them of interest.

Father Reese on Cardinal Dolan on Pope Francis on Capitalism

Father Thomas Reese:

In a May 22 opinion piece for The Wall Street Journal, "The Pope's Case for Virtuous Capitalism," Cardinal Timothy Dolan of New York criticized the media for giving the impression that "the only thing on the pope's mind was government redistribution of property, as if he were denouncing capitalism and endorsing some form of socialism."

They overlook, the cardinal argues, "the principal focus of Pope Francis' economic teaching -- that economic and social activity must be based on the virtues of compassion and generosity."

Cardinal Dolan believes that "the spread of the free market has undoubtedly led to a tremendous increase in overall wealth and well-being around the world," but he also agrees that "far too many people live in poverty and have few opportunities to achieve prosperity." ...

In short, he argues that the capitalism criticized by the pope is not the kind of capitalism practiced in the United States. "For many in developing or newly industrialized countries, what passes as capitalism is an exploitative racket for the benefit of the few powerful and wealthy."

Of course, many would argue that the kind of capitalism increasingly practiced in the United States is crony capitalism in which government restrictions on markets enables the government to pick and choose winners and losers. And, as examples running from Halliburton to Solyndra demonstrate, it's a bipartisan endeavor.

All of which leads me to concur wholeheartedly with this observation by Reese (channeling Dolan):

The proper response to the problems of the free market is "not to reject economic liberty in favor of government control," he writes. "The church has consistently rejected coercive systems of socialism and collectivism, because they violate inherent human rights to economic freedom and private property."

Unfortunately, as Reese notes, Cardinal Dolan's column "did not sit well with theologians who specialize in Catholic social teaching."

They strongly disagree with Dolan's equating the American economic system with "virtuous capitalism." Pope Francis was talking about American capitalism, the theologians say.

As always, of course, the problem is that "theologians who specialize in Catholic social teaching" simply don't understand American capitalism or even basic economics. As preeminent scholar Michael Novak sagely observed in Toward a Theology of the Corporation, theologians tend to be poorly trained in economics and inexperienced with the business world. They “are likely to inherit either a pre-capitalist or a frankly socialist set of ideals about political economy.” (59) Consequently, theologians “are more likely to err in this territory than in most others.” (12)

A persistent error “in this territory” is the tendency towards what Milton Friedman called “the collectivist moral strain” in Catholic social thought. Milton Friedman, Good Ends, Bad Means, in The Catholic Challenge to the American Economy: Reflections on the U.S. Bishops' Pastoral Letter on Catholic Social Teaching and the U.S. Economy 99 (Thomas M. Gannon ed. 1987). Indeed, it is fair to assert that some documents in the social teaching more closely resemble “the platforms of European social democratic parties” than Biblical exegesis. Robert Benne, The Bishops’ Letter—A Protestant Reading, in The Catholic Challenge to the American Economy: Reflections on the U.S. Bishops' Pastoral Letter on Catholic Social Teaching and the U.S. Economy 76, 79 (Thomas M. Gannon ed. 1987).

Fortunately, I suspect Cardinal Dolan will end up having more influence on the Pope than random catholic theologians embedded in left-liberal dogma.

Was the Alderaan Incident Consistent with Just War Theory?

In response to the revisionist argument advanced by Neo-Imperialists that the Empire was not the evil force portrayed by the propogandists of the New Republic, the defenders of the New Republic frequently cite the destruction of Alderaan by the so-called "Death Star." In response to one of my earlier posts, for example, blogger Perry Eidelbus emailed me as follows:

... the Empire embarked on a policy of fear and destruction -- via the Death Star -- to keep star systems "in line." This is hardly something that a benevolent Empire does, especially if its subjects love it. The Empire may be at war, but it destroyed Alderaan, a peaceful planet that had no weapons. Even after Leia gave the location of the old Rebel base (trying to avert Alderaan's obliteration), Tarkin ordered the countdown to continue anyway. It was a demonstration of power, because as he boasted, no planet would oppose the Empire now that the Death Star's abilities were proven.

Blogger Jason Minard likewise emailed as follows:

Very nice glossing over of a weapon used to blow up planets and everyone that was there.  Blockade the planet?  Bah, just blow it up. If there is no rebellions, just a small band of those longing for their crap-philosophical aristocracy, then there is certainly no reason to blow up a planet.  Tarken doesn't care whether or not the planet has any rebels, he only cares that Dantooine is "too remote a planet to make an example".  Blowing up Alderran has nothing to do with the "Rebellion", it is simply a tool of fear used to keep the star systems in line.

Personally, I find it hard to believe that a key planetary member of the rebellion was completely lacking in legitimate military targets. (Note by the way, the interesting historical parallel with the firebombing of Dresden, as to which historians sharply disagree over the presense or absence of military targets justifying that attack.) Indeed, as revisionist historian Jonathan Last has observed:

The destruction of Alderaan is often cited as ipso facto proof of the Empire's "evilness" because it seems like mass murder--planeticide, even. As Tarkin prepares to fire the Death Star, Princess Leia implores him to spare the planet, saying, "Alderaan is peaceful. We have no weapons." Her plea is important, if true.

But [we have] no reason to believe that Leia is telling the truth. [E]very bit of information she gives the Empire is willfully untrue. [For example], she tells Darth Vader that she is on a diplomatic mission of mercy, when in fact she is on a spy mission, trying to deliver schematics of the Death Star to the Rebel Alliance. When asked where the Alliance is headquartered, she lies again.

Leia's lies are perfectly defensible--she thinks she's serving the greater good--but they make her wholly unreliable on the question of whether or not Alderaan really is peaceful and defenseless. If anything, since Leia is a high-ranking member of the rebellion and the princess of Alderaan, it would be reasonable to suspect that Alderaan is a front for Rebel activity or at least home to many more spies and insurgents like Leia.

Let us accept arguendo, however, the claims of Princess Leia and her apologists that Alderaan was peaceful and had no military targets.

Even so, one could argue that the destruction of Alderaan was not inconsistent with just war theory. To be sure, many just war theorists claim that the tradition requires both discrimination between civilian and military targets and proportionality. Yet, as LTC Peter Farber, an instructor at the Academy, has written: "there is no single, coherent just-war position. Rather, there are clusters of ideas that have waxed and waned through time, and they have not evolved into a transhistorical system of simple moral rules." Hence, as Farber notes, theorists long defended strategic bombing within the just war tradition:

... 1) it preserved and protected the just against the criminal (note the Augustinian emphasis here), 2) the civilians supporting their national leadership were equally responsible for the decisions made by that leadership, and 3) the vigorous prosecution of the war prevented an even greater loss of human life.

While the destruction of Alderaan may be regretable, it seems clearly defensible under this understanding of the ethics of strategic warfare. Indeed, as Tarkin noted, the very purpose of destroying Alderaan is to end the war more quickly. Hence, just as was the case with strategic bombing in earlier times, "the vigorous prosecution of the war" could be justified as an effort to prevent "an even greater loss of human life."

Personally, of course, I find the notion that just war requires discrimination and proportionality morally and ethically attractive. Indeed, I regard that understanding of just war vastly superior to the norms of strategic bombing.  My defense of the Alderaan incident thus is mostly by way of playing devil's advocate. Yet, after reading Farber's essay, I must acknowledge that people of good will can and have differed on this issue. Hence, I am not quite as prepared as I might once have been to concede that the Alderaan incident is as morally straightforward as the New Republic's apologists claim.

In closing, let me remind you of something a great Jedi philosopher of an earlier age wrote:

Treason never prospers, for if treason prospers, none dare call it treason.

And what is the New Republic, if not prosperous?

Private Sector Unions: Catholic Social Thought and Economic Analysis

The LA grocery strike is getting to be a real pain. I rely on our neighborhood Ralph's for staples. Oddly enough, it also houses the only branch of my bank in our neighborhood. My problem is that, contrary to what I bet you suspect, I will not cross picket lines. Why not?

First, I come from a long line of union members. Second, Catholic Social Teaching emphasizes that workers have a natural right both to form unions and to strike. As I read the relevant encyclicals and pastoral letters, this teaching is not a matter of prudential judgment, but rather an authoritative teaching to which faithful Catholics must give religious assent. Finally, unions potentially are an important way of minimizing transaction costs.

Labor contracts are subject to moral hazard problems on both sides. Workers shirk—providing less effort than that to which they have agreed. Owners behave opportunistically—providing fewer rewards than promised. Preventing such shirking is one of the principal functions, in economic terms, of any labor relations system. Hence, at least among lawyer-economists in the transaction costs branch of law and economics, the once widely-held view that unions exist to capture monopoly rents for workers in the form of higher wages and superior benefits has given way to an understanding that unions play an important role in reducing transactions costs by constraining strategic behavior by management. Because workers value job security, firms can obtain lower labor costs if they can credibly promise to refrain from opportunistic conduct. One way of bonding that promise is to sign a collective bargaining agreement with a union. Collective bargaining transforms the decisionmaking process from unconstrained management prerogative to limited managerial discretion bounded by claims of right sounding under the agreement. The seniority system, with its ports of entry, internal promotion ladders, and protection from lay-offs, offers job security. Union monitoring helps ensure compliance by the firm with its contractual obligations. Grievance procedures allow for dispute resolution. Collective bargaining thus becomes a burden on the enterprise, in that it raises the transaction costs associated with decisionmaking processes and limits management discretion. Yet, because that burden serves to make the firm’s promises to its employees more credible, it is one rational managers would accept. (Putting the theory into practice, of course, has been a problem. Unions have been plagued by internal agency costs and been a source of social costs.) For a more detailed explanation see my articles Employee Involvement in Workplace Governance Post-Collective Bargaining and Corporate Decisionmaking and the Moral Rights of Employees.

Update re decisionmaking heuristics: One of my colleagues dropped by the office this afternoon to object that, whatever merit my arguments may have, I have not made a case for refusing to cross all picket lines. Good point. Neither efficiency or morality compels the result that every strike is worth respecting. My rule against crossing crossing picket lines, however, is economically justified as a transaction cost minimizing decisionmaking heuristic. Bounded rationality is a neo institutional economics concept capturing the idea that we all have inherently limited memories, computational skills, and other mental tools. These limitations become a significant constraint on decisionmaking under conditions of complexity and uncertainty. Under those conditions, we can reduce decisionmaking costs by adopting a heuristic -- a rule of thumb -- for making judgments. Yes, the rule of the thumb inevitably produces errors, but the benefit in time and effort saved may outweigh error costs. A rule of thumb of not crossing any picket line saves me the time and effort necessary to figure out whether a given strike is morally and economically justified.