Against the Separationists

Br. Anthony Maria Akerman O.P. on the impossibility of a natural law regime, and the necessity of the divine law for the temporal power.

Many Catholics, seeking to avoid the labels of both “liberalism” and “integralism,” attempt to split the difference by describing the State as a kind of “natural law regime.” In this imagined via media, they see themselves set apart from true liberals, for whom even appealing to the “natural law” is excessively partisan; and at the same time, set apart from the integralists, denying that positive divine law ought to direct the temporal power.

My central aim here is to close the door on such a middle way.

I intend to do so by showing how the natural law itself is inextricably linked to the positive divine law. At least in the majority of contemporary situations, a purely natural law regime is not a possibility. The bulk of my argument is based on Thomas Aquinas’ treatise on law. I’ll conclude, however, with an examination of some magisterial texts, particularly from Leo XIII and, even, Benedict XVI to confirm that this strictly natural temporal power is neither proposed nor defended by the Church.

Aquinas on Law

How does St. Thomas define and categorize law? Law (in general) is “an ordinance of reason for the common good.” (Summa Theologieae, I-II, 90.4) Concerning the various kinds of law: First, there is the eternal law. This is, essentially, the divine Mind. (91.5)

Then there is the natural law, which is nothing other than the eternal law as it exists in the mind of man. (91.2) It is inscribed into the very nature of man, and is concerned with “self-evident principles.” (94.2) Of course in concrete historical circumstances the conclusions from these self-evident principles may become confused when man’s “reason is perverted by passion or habit” nevertheless the precepts of the natural law are, in principle, knowable by the light of reason alone. (94.5)

Natural law, though it provides the unalterable first principles of practical reason, still needs some further specification (what Thomas calls a determinatio). This is the task of human law. (91.3) Human law is thus an extension of the natural law, and thus must be in harmony with it. However, it is more particular because the natural law cannot specify itself. For example, that a thief ought to be punished is knowable to natural reason. But how a thief ought to be punished must be determined by human law.

But even with these additional determinations provided by human law, another law, a divine, or revealed law, is still needed. Aquinas gives several reasons: First, God has destined man for a supernatural end, and therefore more than a natural law is required to attain it. Second, what God reveals is known with greater certainty. So even those things that are naturally knowable can be purified of human fallibility with the help of revelation. Also, human law simply cannot punish or forbid all evil deeds, but so that no evil may go unpunished, God supplies a divine law. (91.4)

Considering these reasons alone, it is not obvious why the State would find the natural law necessarily insufficient, or have any strict need of divine revelation. The responsibility of the temporal power is to direct man to his natural good. So the temporal power is legitimately governed by human law, which is to say, it is governed by the natural law and supplemented by those determinations provided by legitimate human authority. As Aquinas says: the end of human law differs from the end of Divine law, insofar as human law is directed to the “temporal tranquility of the State,” which it does by directing external actions. (98.1)

Some are apparently content to stop here. The State, they will claim, is a strictly secular power, and thus has no competence or interest in directing man spiritually, which is the concern of “religion.” This of course, would be an incredibly superficial reading. It is unmistakable that the natural law does include precepts concerning right relation to God.

St. Thomas says that natural reason commands that “man should do something through reverence for God.” But, he adds, reason itself does not tell us that he should do this or that determinate thing. These determinations, he says, are provided “by Divine or human law.” (II-II, 81.2, ad. 3) For example, “offering sacrifices belongs generically to the natural law ... but the determination of sacrifices is established either by God or by man.” (II-II, 85.1, ad. 1) In other words, to worship God is a dictate of the natural law, and thus is something with which even a “natural law” regime should be concerned.

The Problem with Civil Religion

So here again a tenuous kind of “middle” position may arise. Maybe we can say the temporal authorities ought to be concerned with promoting religion in general, what we might call natural religion. In this way the state can remain unconcerned with any sectarian creeds or rites. As President Eisenhower reportedly said, “Our government makes no sense unless it is founded in a deeply felt religious faith - and I don't care what that faith is.”

Here too, St. Thomas himself might be used to bolster such a modern opinion. After all, he explains that divine and human law have different purposes: “the Divine law is instituted chiefly in order to direct men to God; while human law is instituted chiefly in order to direct men in relation to one another.” Based on this distinction, Thomas notes that “human laws have not concerned themselves with divine worship except as affecting the common good of mankind.” That is to say, historically, the temporal power has had care of religion, but only insofar as religion has temporal consequences. This, he says, can be observed in the “rites of the Gentiles.” (I-II, 99.4)

But the crucial element overlooked in this putatively Thomistic defense of “natural religion” is that to prescind from divine revelation is never presented as an option by Aquinas. Rather, St. Thomas argues that human authorities must determine ceremonial observances out of necessity only where God’s self-revelation is not yet known. For a people to whom God’s revelation is known, there is no justification for acting as if it isn’t.

Furthermore, in the case of the “rites of the Gentiles” that St. Thomas mentions, it is clear that simple religious indifferentism or neutrality is not an option. Rather, what is owed to God by society is rendered according to a particular rite. And in the absence of revelation, this rite is necessarily supplied by the temporal power — illumined by revelation, the temporal power would recognize the Church’s rite.

Jean-Jacques Rousseau seems to have understood this well enough since he also advocated for some kind of civil religion as necessary to society. But, importantly, as he notes, within such a society, the one civil religion that cannot be tolerated is Catholicism, since it is an exclusive religion of revelation, claiming an authority which transcends the temporal power.

And this is really the upshot of the history of political theology traced by St. Thomas in De Regno. He explains that in the pagan world, worship is necessarily ordered toward a temporal good, a natural good. It must be so because without revelation, man is not yet directed to his supernatural end. And thus, in the Gentile religions priests were subordinate to kings. Even under the divinely revealed law of Moses, because it promised earthly goods, priests were subject to kings. “But,” he writes, “in the New Law there is a higher priesthood by which men are guided to heavenly goods. Consequently, in the law of Christ, kings must be subject to priests.” (De Regno, ch. 15, §111)

In other words, with the coming of Christ and through the preaching of the gospel, the otherwise natural relation between kings and priests, between temporal and spiritual powers, has changed. Now that man’s supernatural end is known by revelation, the kingly power must be subordinate to the priestly. Some have recently argued that what the gospel accomplishes is merely the separation of temporal and spiritual power. Because priestly authority is taken out from under kingly authority, what we are left with can be referred to as “political naturalism,” or “separationism.”

These recent arguments are unpersuasive, and in many ways, they are just a reiteration of what John Courtney Murray argued decades ago. Murray, too, appeals specifically to Thomas’ distinctions of law. With Aquinas, he notes that there are two kinds of natural law precepts. The first are obvious, even at first glance, while others require “much consideration,” and therefore, “wise men,” are necessary to discern them. (See Murray’s We Hold These Truths, Kansas City: Sheed & Ward, 1960, p. 115f.)

However, Murray makes a critical omission. And this comes really to the heart of my argument in this paper. There are not just two divisions of moral precepts. There are three. And given Murray’s commitments, his neglect of the third is very noticeable and highly problematic. For Aquinas adds, “lastly there are some matters of which man cannot judge unless he be helped by divine instruction; such as the articles of faith ... whereby we are taught about the things of God.” (ST I-II, 100.1) This means there are moral precepts, that is, precepts of the natural law, that require a divine word in order to fully comprehend.

Aquinas gives an example: “Thou shalt not take the name of the Lord thy God in vain.” Insofar as reverence due to God is knowable to natural reason, a prohibition against blasphemy is obviously contained within the natural law. Any pagan could tell you that one ought not to use the name of God in vain. And yet, in order to know what God’s name actually is requires divine revelation. Aquinas thus exposes a kind of gap in the natural law. Just as in the case of human nature itself, what is in the natural law is only brought to true completion and perfection through grace.

Therefore, from the point of view of the natural law, strict secularism is not an option, nor is religious indifferentism. Nor can a broad advocacy of “civil” or “natural” religion, a la Rousseau, be compatible with Catholicism. The only option that remains is that the laws promulgated by the temporal power, insofar as they cannot ignore the question of religion, must acknowledge the truth of divine revelation and thus also the authority of the Church. Simply put, “in the law of Christ, kings must be subject to priests.”

By properly understanding the intrinsic relationship of the natural and divine law, it seems to me that there is no room for a middle way. One cannot at once say that the temporal power is to govern according to the natural law, and at the same time say that it must take no care of religion or have no recourse to divine revelation. On a very practical level, I think this means there is a de facto legitimacy to blasphemy laws and Sunday laws, for which there is already precedent even in a country like the United States. But really I think the importance of understanding this proper integration of natural and divine law concerns much more than the implementation of the first table of the Decalogue. It certainly doesn’t imply a curtailing of genuine religious liberty, properly understood.

The View(s) from the Popes

In conclusion, I intend to make just two brief points of contact with magisterial teaching. First, with Leo XIII, who, I think, makes the very same claims I’ve just made—and then Benedict XVI, who seemingly says the very opposite.

To arbitrarily deprive human law of the light of divine revelation is exactly what Pope Leo XIII condemns as the sin of liberalism. (Immortale Dei, 6) He specifically repudiates those who “would have liberty ... subject to the natural law ... but bound by no law of God except such as He makes known to us through our natural reason.” (Libertas, 17) Some, ostensibly Catholic liberals, as he describes them “affirm that the morality of individuals is to be guided by the divine law, but not the morality of the State,” from this, Leo says, “follows the fatal theory of the separation of Church and State.” (Libertas, 18)

While Pope Leo is quite unambiguous on the matter, some might hastily insist that the post-conciliar magisterium has made a total about-face on this issue. Ironically, detractors often point to the 2005 Christmas address of Pope Benedict XVI to prove that integralism is dead; ironic, because this is the very message in which Pope Benedict disavowed the “hermeneutic of discontinuity and rupture.” And, just days ago, First Things published an essay in which the authors claim that Benedict believed “the secular character of the state requires that [gospel] values be trimmed of their specifically Christian elements” and defended solely in natural law terms — which, admittedly, would be the antithesis of what I have argued here.

However, if we give due priority to his more authoritative texts, and read his public addresses as pope (as he asked us to) with a hermeneutic of “reform” rather than of “rupture,” I think the problem becomes much less dire. In fact, reading his encyclical Caritas in veritate, in parallel with Leo’s Libertas, I find many points of continuity.

Most notably, and of most relevance to the topic at hand, Benedict writes: “When the State promotes, teaches, or actually imposes forms of practical atheism, it deprives its citizens of the moral and spiritual strength that is indispensable for attaining integral human development.” (Caritas in veritate, 29) This “practical atheism” to which Benedict refers echoes Pope Leo’s warning, where he says that “to treat the various religions alike, and to bestow upon them promiscuously equal rights and privileges” is “godlessness,” (Libertas, 21) calling elsewhere, “the same thing as atheism, however it may differ from it in name.” (Immortale Dei, 31) Indeed, throughout Benedict’s theological career he was incredibly consistent on his rejection of cultural relativism and religious indifferentism.

I will readily admit that Pope Benedict has written “certain things hard to be understood,” which, as St. Peter said of St. Paul’s writings, “the unlearned and unstable twist to their own destruction.” (2 Peter 3:16) And yet, whatever Benedict may mean by legitimate pluralism or a healthy secularity, he bids us remember that even political “reason always stands in need of being purified by faith.” (Caritas in veritate, 56) He also explains that while “[r]eason, by itself, is capable of grasping the equality between men and of giving stability to their civic coexistence ... it cannot establish fraternity. This originates in a transcendent vocation from God the Father, who loved us first, teaching us through the Son what fraternal charity is.” (19)

Pope Benedict thus concludes that the truths of revelation are of “indispensable importance ... for building a society according to freedom and justice,” (13) and he adds, in apparent agreement with integralists and St. Thomas alike, that this is possible “only in charity, illumined by the light of reason and faith.” (9)

The middle way which separates is closed to us now, but there is another way which unites.