Wolfgang Waldstein’s Jurisprudence

Wolfgang Waldstein with Cardinal Erdő in Hungary

Ius & Iustitium is a new blog on legal and juridical matters associated with The Josias. I was very happy to be able to get a text posted there by my grandfather, Wolfgang Waldstein: “The Significance of Roman Law for the Development of European Law.” I believe that my grandfather exemplifies precisely the sort of realist common good jurisprudence, founded on the natural law and enriched by the centuries old tradition of the application of natural law in the Roman law and the legal traditions based on Roman Law that Ius & Iustitium is trying to promote.

Wolfgang Waldstein at the summit of the Dachstein

Human Ecology

Human ecology also implies another profound reality: the relationship between human life and the moral law, which is inscribed in our nature and is necessary for the creation of a more dignified environment. Pope Benedict XVI spoke of an “ecology of man”, based on the fact that “man too has a nature that he must respect and that he cannot manipulate at will”. It is enough to recognize that our body itself establishes us in a direct relationship with the environment and with other living beings. The acceptance of our bodies as God’s gift is vital for welcoming and accepting the entire world as a gift from the Father and our common home, whereas thinking that we enjoy absolute power over our own bodies turns, often subtly, into thinking that we enjoy absolute power over creation. — Pope Francis, Laudato Si’

Roger Scruton

A while ago I posted a response to an First Things essay by Roger Scruton on the good of government. I later sent an abridgment of my post to First Things as a letter to the editor. It appeared in the October issue, with the following reply by Scruton:

As for Fr. Waldstein’s theological vision of the good of government, I can only respond as Burke responded to the Reason advocated by the French Revolutionaries. He wrote: “We are afraid to put men to live and trade each on his own private stock of reason; because we suspect that this stock in each man is small, and that the individuals would do better to avail themselves of the general bank and capital of nations and of ages.”
Advocates of natural law in the Catholic tradition have often told us that the good is discoverable to reason, and that we have only to consult it. But they tend to be as reluctant as Waldstein to define who is doing the consulting, and how. Burke’s view, that there is a kind of reason that emerges through civil association, and which is both conserved in our traditions and irretrievably dispersed by the attempt to make it explicit, offers, to my mind, a better model of the place of reason in government. On Burke’s view, rational solutions emerge from below, by an invisible hand, and are not imposed from above by those who claim to have privileged knowledge of the natural law. (The same point is made in other terms by Hayek, in his defense of the common law.) One can agree with Kant’s warning against paternal government without thinking that “any submission to an authority other than the self is tyrannical.” As I understand it, the art of living in ­society is precisely the art of submitting to authority—but doing so willingly, and in the little platoons that we ourselves create.

I have the greatest respect for Scruton, and certainly his position is not as bad Kant’s, but I’m still not convinced. He returns my Kant comparison with interest by comparing me to the Jacobins. But I was a little surprised by his saying that am “reluctant” to define who is to determine what the natural law is. True, I gave no account of that in my letter, but in the past I do not think I have been notably reluctant. By coincidence the most recent issue of The European Conservative features an excerpt from one of Scruton’s books and a notably unhesitant essay by me right next to each other in the Table of Contents:

Screen Shot 2014-09-20 at 10.32.21

On seeing this Coëmgenus noted the juxtaposition of Scruton’s title “What is Right” and my subtitle “what is best”—an illustration of two different approaches.

Leo Strauss’s Objections to Thomism

2 Michelangelo S 328

Leo Strauss’s critique of modernity was very penetrating, and there is much to be learned from it. But what are we to think of his idea that modernity was (at least in part) a reaction against St. Thomas Aquinas’s distortion of Aristotelian philosophy, and that thus a true return to the ancients much dis-engage them from their Thomistic mis-reading?

In Natural Right and History Strauss argues the great advantage of the political philosophy of Aristotle and Plato is that, while they thought that the good was objective and absolute, they saw the more proximate rule of action as relative to what was actually praised and blamed in a given political context:

The variability of the demands of that justice which men can practice was recognized not only by Aristotle but by Plato as well. Both avoided the Scylla of “absolutism” and the Charybdis of “relativism” by holding a view which one may venture to express as follows: There is a universally valid hierarchy of ends, but there are no universally valid rules of action. (Natural Right and History, p. 162)

St. Thomas’s teaching on natural law, Strauss then argues, misses this mean and falls prey to the “Scylla of absolutism.” Because St. Thomas sees the natural law as promulgated in every heart through conscience (or rather synderesis) it is universally binding, and there is thus no room for a discrepancy between what is good absolutely and what is good relative to a particular civil society. Moreover, Strauss argues, the Thomistic teaching on natural law orders all things to a final end which transcends earthly life, and is thus a properly theological account of law. The fundamental precepts of this law are thus the same always and everywhere and can brook no exception.

Strauss thinks that this moral absolutism is inhuman as it leaves to little room for the role of prudence and the situatedness of human life in contingent political circumstances. He sees  modernity as an understandable reaction against this overly theological moral legalism, a reaction however which falls prey to the Charybdis of relativism:

Modern natural law was partly a reaction to this absorption of natural law by theology. The modern efforts were partly based on the premise, which would have been acceptable to the classics, that the moral principles have a greater evidence than the teachings even of natural theology and, therefore, that natural law or natural right should be kept independent of theology and its controversies. The second important respect in which modern political thought returned to the classics by opposing the Thomistic view is illustrated by such issues as the indissolubility of marriage and birth control. A work like Montesquieu’s Spirit of Laws is misunderstood if one disregards the fact that it is directed against the Thomistic view of natural right. Montesquieu tried to recover for statesmanship a latitude which had been considerably restricted by the Thomistic teaching. (p. 164)

I recently came across a recording of a lecture which Herbert Hartmann once gave at my alma mater that discusses this argument in detail, and then offers a defense of St. Thomas’s doctrine.

Hartmann’s defense of the Thomistic doctrine goes I think in the right basic direction, but then subtly misses the mark. He argues that natural law is not an extrinsically imposed set of rules to which the human person has to conform. Rather natural law is the voice of reason itself as a participation in divine reason. This is all very well, but then Hartmann tries to argue from this that therefore there is no “set pattern” of the moral life which reason discovers, but rather man himself establishes the rules of moral action by prudent choice.

This resembles the interpretation of St. Thomas which German speaking moral theologians such as Franz Böckle and Alfons Auer gave in the period following Vatican II. Böckle and Auer were trying to defend Catholic moral theology from the accusation of “heteronomy” leveled at it by Kantian ethics, and this lead them to exaggerate the “autonomy” of human reason, giving it a quasi creative power– as though what specified a kind of action as good were prudent choice itself, rather than the order to a due end with which prudence is concerned. Steve Long’s Teleological Grammar of the Moral Act masterfully clears up this confusion.

Similarly, Hartmann’s wish to avoid the Straussian charge of absolutism leads him to exaggerate the variability of morality. He is right that the natural law is not an extrinsic imposition on humanity; it is indeed human reason itself determining about the fitting means to the end of human life. But when he then argues that there is no universally valid, set pattern, of moral rules, he is equivocating on “determine.” Human reason does not “determine” the natural law in the sense of “making it up,” but in the sense of “recollecting” the eternal law, the Wisdom of the Creator in which all things are sweetly ordered.

Nostalgia for a Time that Never Was: Natural Law and Anamnesis

Titian Jesus     - 019

A while ago I had an exchange with a feminist blogger, Elizabeth Freudenthal, about abortion and related matters. In a later post she wrote that the feeling she got from my comments was one of “nostalgic sorrow” for a time that never really existed. That thought occurred to me again as I was reading a talk that then Cardinal Bergoglio gave at the presentation of a book of Don Giussani’s. The future Pope Francis said:

I am convinced that [Father Giussani’s] thought is profoundly human and reaches man’s innermost longings. I dare say that this is the most profound, and at the same time understandable, phenomenology of nostalgia as a transcendental fact. There is a phenomenology of nostalgia, nóstos algos, feeling called home, the experience of feeling attracted to what is most proper for us, most consonant with our being. In the context of Fr. Giussani’s reflections, we encounter instances of a real phenomenology of nostalgia.

This nostalgia is a kind of “recollection” of the creator, who has created us for Himself, and it explains the kind of “recognition” of the Lord when we encounter Him. But in a secondary sense this nostalgia is also for “the law,” the order written into our hearts. There is a wonderful passage on this written by Cardinal Ratzinger before he became Pope Benedict XVI:

The word anamnesis (recollection) should be taken to mean exactly what Paul expressed in the second chapter of his Letter to the Romans: “When Gentiles who have not the law do by nature what the law requires, they are a law to themselves, even though they do not have the law. They show that what the law requires is written on their hearts while their conscience also bears witness …” (2:14 ff.). The same thought is strikingly amplified in the great monastic rule of Saint Basil. Here we read: “The love of God is not founded on a discipline imposed on us from outside, but is constitutively established in us as the capacity and necessity of our rational nature.” […] This means that the first so-called ontological level of the phenomenon conscience consists in the fact that something like an original memory of the good and true (both are identical) has been implanted in us, that there is an inner ontological tendency within man, who is created in the likeness of God, toward the divine. From its origin, man’s being resonates with some things and clashes with others. This anamnesis of the origin, which results from the godlike constitution of our being is not a conceptually articulated knowing, a store of retrievable contents. It is so to speak an inner sense, a capacity to recall, so that the one whom it addresses, if he is not turned in on himself, hears its echo from within. He sees: “That’s it! That is what my nature points to and seeks.”

I think that everyone who tries to live the Christian life has had an experience of this anamnesis, this recollection of what is “most consonant with our being.” And, as Ratzinger continues, this is what makes mission possible: “The Gospel may, indeed, must be proclaimed to the pagans because they themselves are yearning for it in the hidden recesses of their souls.”

At the end of the post where she discusses my nostalgia Elizabeth Freudenthal writes:

I’m all for the comfort that religion provides to people. I wouldn’t even call myself secular, despite my affiliation with liberal feminism, higher ed, and data-driven policy. But here, we don’t legislate religion. Which is pretty much the best thing about our country.

If all “religion” were, were a comforting symbol of the mystery of human life, but without any claim to truth, then it would be a sad thing indeed. But if it is indeed the encounter with our maker, the ground of our being, the deepest longing of our hearts, then any theory of human life that contradicts it contradicts the depths of our humanity, and is deeply destructive of true happiness.