Monday July 19, 2010

Complete Interview with Christopher Ferrara

( – Christopher Ferrara is president and chief counsel of the American Catholic Lawyers’ Association, an organisation dedicated to the defence of the rights of Catholics in civil litigation and public discourse, with an emphasis on the defence and/or plaintiff’s representation of pro-life activists. He spoke with at the Roman Forum conference on Catholic political and social thought in Gardone Riviera, giving a summary of his lecture, “From Montesquieu to Holmes to Scalia: How Legal Positivism Triumphed over the Good, the True and the Beautiful”.

Chrisopher Ferrara: We’re operating under the shadow of Roe v. Wade. But R v W is only one of the many emanations of the doctrine known as legal positivism. What is legal positivism? It is simply the doctrine that the law is what is posited. Put forth. So let it be written, so let it be done. It doesn’t matter whether there’s a natural law standard underlying a legal enactment, a utilitarian standard or any standard at all.

The problem of legal positivism arises ultimately from the shifting of our civilization onto liberal foundations, laid down first by Descartes and the Cartesian revolution with its radical scepticism. With the retreat to an immanentist view of reality. In other words, instead of beginning with the world of being and reaching a deduction about what is out there which corresponds to what we perceive – our mind connects to reality, adequates to the real world and is able to abstract universals from the world of being – instead of that we go inward. We doubt everything that our senses tell us. We begin with thought; the first journey is thought, not being. Which is a reversal of the process of knowing things.

So the Cartesian method was taken up and applied most dramatically by [English political philosopher John] Locke under the guise of a rhetoric of moderation. And what I call “pious fig leaves”. Protestations of a firm belief in the divinity, the life to come, the final judgement, etc.

So Locke would be the first one to have explored in a systematic way the so-called epistemological question: What do we know? How can we be sure we know it? and basically it’s an application of this principle of radical doubt. Now, the very posing of an epistemological question calls into question the reliability of the senses. Which is why before Locke, there really wasn’t an epistemological question explored in any great or systematic way.

But Chesterton dispensed with all that nonsense with a simple observation. The philosophy of the Church, which is Aristotelian/Thomistic philosophy, which is the philosophy of common sense, reduces to the proposition that eggs are eggs. An egg is an egg. One thing is different from another. And you know it’s an egg. It’s not a hen. It’s not anything but an egg. And we have this, says Chesterton, on the authority of the senses which is ultimately the authority of God. So he who poses an epistemological question is really saying that our senses are unreliable. And he who says that our senses are unreliable, is casting into doubt the very existence of God. Why would He fit us with unreliable senses and leave us wandering in a daze unable to perceive the real world?

So Locke came up with his epistemological question and very stealthily and subversively, under a rhetoric of moderation called into question everything that men believed. It’s that simple. He was radically subversive of all categories of thought about being. And in particular the thoughts about the human substance or essence that we know as the soul. He didn’t deny it outright; he called it into question.

So he was one of the first to speculate whether a foetus is fully human. That having more than once been suggested, he says in his Essay Concerning Human Understanding, “Whether the foetus is a man, and whether it should be nourished or baptised”. And of course, Hobbes before him, not long before him, said in De Corpore that the child is the “propriety,” their word for property, of the mother, and remains her propriety, i.e. property, until it is born. Locke and Hobbes opened the door to [legal] abortion.

Locke did it more stealthily by calling into question the human substance or essence, in other words, a human identity. And he even speculated that human identity consists not in what the Scholastics would call or a human substance or essence united to a body, which makes the man, but rather in consciousness alone. The human identity consists in consciousness which raises all kinds of questions.

At the moment of death and the particular judgement, what exactly is judged if not the soul? How can there be consciousness alone? And he himself admitted that a drunk man is not the same man as a sober man because his consciousness has been affected. So he opened a Pandora’s Box of radical doubt that called into question basically the existence of things in the real world.

[He did this] through his so-called Essay Concerning Human Understanding, which did more to undermine human understanding than any document of the so-called moderate Enlightenment. And many, many scholars far brighter than I have explored this and demonstrated this conclusively, that Locke is subversive of the world of being. And he himself says that his intention is to ignore the world of being and to start from the other way around, in the mind with thought. Which is what Descartes first did. And he was a student of Descartes, a very avid student. So that’s the problem.

Now, in terms of life issues and positive law, the fundamental problem is that political modernity no longer cares about the question, ‘what is man?’ And certainly not the question, ‘what is man for?’ which is to know, to love, to serve God in this world, and to be happy with Him forever in the next.

LSN: If you’ve essentially negated the existence of man, then it becomes a moot question asking what he is for…

CF: Man is a bundle of desires attached to a bundle of rights. But of course, Locke piously spoke of the life hereafter, but his own contemporary critics accused him of Hobbesism, Deism and even atheism because they could see the implications of what he was doing.

So political modernity, of which Locke was a major founder, with Montesquieu and other founders of the modern Enlightenment, puts aside the question ‘what is man’ and ‘what is man for?’ and shuttles that off to the realm of private opinion and says to us, ‘Well, let’s work with what we know.’

Man is an animal; he needs to feed himself. He needs to have a certain amount of property and he needs security in his person and property. These things we in common with the animals. But the difference between man and other animals is he’s capable of arriving at rational decisions in order to get these things. He’s purely a rational animal in the sense, basically, of a clever animal.

So we will build a society that serves the needs of this very clever animal and these needs are all basically emanations of the desire for self-preservation. We procreate to preserve ourselves. We get food to preserve ourselves. We associate with other people to preserve ourselves. We need property to preserve ourselves. And we need the government to preserve ourselves from attacks by others upon our persons and our property. And that is the foundation stone of the modern state.

Now what does this conception of the state do? Well, first, since the state is no longer organised to serve man as an ensouled creature, made for God to be with God for all eternity, the law no longer considers the soul as an element of political activity. And Locke specifically says this in his Letter Concerning Toleration, that the magistrate has no concern for the care of souls. The care of souls is left to each individual man. And the magistrate’s job is to secure persons and property.

LSN: So the state abrogates any responsibility to guard moral life…

CF: Yes. Now Locke would piously insist on certain moral prescriptions in the law but he has already undermined the very principle on which these prescriptions rest. Because beyond security of persons and property, on what ground do you prohibit, for example, contraception? That’s no threat to peace and security.

So the modern state is basically a peace-keeping operation that exists only to preserve an outward security of persons and property. And not very well at that, I might add. It no longer exists to escort man, within the sphere of his competence, to his final end in beatitude by appropriate laws that protect the moral order.

[Under the principles of the Natural or divine law,] the state doesn’t force us to worship, for example. But the state requires that conditions exist which facilitate worship. So for example, Sunday closing laws are as old as the western world.

LSN: But they’ve been pushed out by this new Lockian idea of what the state is for.

CF: Of course, because in this new commercial society, which is all the modern state is – it’s a trading ground, ‘city of pigs,’ the very thing that [Greek philosopher] Glaucon and Socrates ridicule in the Republic, the very thing that Aristotle dismisses as an inadequate notion of the state – the city of pigs, the commercial society is what we now have.

So the western world is one vast trading zone, hosted by secular governments which now completely prescind from the question of what man is, or what man is for, and pretend to be religiously neutral, when they’re not.

Because if the state says, ‘we don’t care what man is, what man is made for,’ it has already embraced an anti-theology. And in fact, the very function of such a state is to protect itself from religion. Not to guarantee the free exercise of religion, but to protect itself from religion.

Anybody who thinks that the modern regime grants us true freedom of religion, hasn’t thought about the question very deeply. Let me take one example. When a Catholic is married in a church, he has a perpetual sacramental bond as a result of the marriage ceremony. The so-called religiously neutral state, however, has legalised civil marriage and divorce. And so the Catholic wife divorces the Catholic husband, or vice versa, children are taken away from one parent or the other. Property is taken away from one parent or the other. The marriage is declared annulled. The family is destroyed and the sacramental bond is ignored.

And whoever would attempt to assert the sacramental bond against the divorce court’s judgement would be arrested and thrown into jail. So the family has been completely destroyed by an institution imposed on Catholics and other Christians by a so-called religiously neutral government. Which is actually utterly hostile to a fundamental religious tenet, the sanctity of marriage, and the absolutely essential nature of the family as the basic cell of political society. That’s one example alone.

LSN: If we say that all of our modern world is based on these anti-religious Enlightenment principles, what can we say to the large number of Christians, especially in the United States, who uphold these principles? Like freedom of speech, freedom of religion, as they are currently understood, which are held to be this sanctified body of ideas, but that in fact come out of this anti-religious Enlightenment. Can we Christianise these principles, this modern secular state?

CF: People have been bred to recite mindlessly the mantras of political modernity: ‘we must have freedom of expression for any and all opinion’. Of course the [Catholic Church’s] magisterium prior to the Second Vatican Council condemned [these ideas] as a ‘delirium,’ to quote Gregory XVI in Mirari Vos.

We’ll take a concrete example from our society that shows the incoherence of the whole thing. In our society if a person were to advertise, say a vitamin supplement, which is utterly worthless, as a miraculous cancer cure, and induce many people to part with 12 dollars a piece, knowing that it cured nothing, he could be criminally prosecuted for his false commercial speech. And there’s no freedom of expression there because, after all, he induced people to part with twelve dollars each. What could be more heinous than that?

But under this idiotic conception of a total freedom of expression, one can go out and say, ‘Let us murder millions of babies in the womb. We must have the right to do this. Let the killing begin. Let’s all vote for it now, so that we can destroy an entire generation of human beings.’ That, of course, one has the absolute right to say. Because after all, one hasn’t induced anyone to part with anything so precious as twelve dollars.

This is the nonsense that underlies all of political modernity, this idea of an absolute right, which really isn’t absolute. You see here from my example, that the absolute right of freedom of expression somehow doesn’t operate when it comes to what political modernity protects. Money and property.

LSN: And sex.

CF: Yes, and sex. You can’t deprive people of money or property, but you can deprive them of their souls and their unborn children. And with another example, gay marriage, we can certainly argue with impunity for the abomination of men marrying each other and women marrying each other. Another dart aimed at the institution of marriage that will of course, as Cardinal Trujillo said, mean the end of the world, quite literally, as he said in one of his addresses when he was still head of the Pontifical Council for the Family.

So this idea of an absolute freedom of expression is utterly ridiculous, fatal to the organisation of society. Popes all preached this before Vatican II, and even the Second Vatican Council cautioned that the mass media must be controlled by the state to prevent the corruption of public morality, and that pornography must be gathered up and destroyed.

And so, that’s the problem with rights which are not attached to any understanding of what man is and is for. If man is an ensouled creature, his destiny is heaven and he has to preserve the integrity of his soul, practice virtue, above all supernatural virtues, and avoid mortal sins in order to reach his final end of eternal beatitude, the law must protect that final goal through legislation within the sphere of its competence.

LSN: So, the state has the responsibility to create legislation to protect human souls.

CF: Yes. Souls. Which is another way of saying morality because only humans have rational souls that can make moral choices. So to protect morality is to protect souls. We can be led astray by what Pope Leo XIII called ‘vices which insidiously work the ruin of the state’ if they are not repressed.

And of course, political modernity retains some concept of the repression of intolerable opinions as we see in Canada and Europe, where because there is no Natural Law standard, but an arbitrary standard of unacceptable speech, politically incorrect speech is now punishable by law. So the concept of censorship remains, but the content is all wrong.

This is the great fraud. All the principles that we [Catholics traditionally] defend, state censorship of dangerous opinions, the profession of a religious view by the state, and other such principles, have all been retained. They’ve just been subverted and turned around the other way. So, there’s an anti-theology of the state. The state strictly enforces religious neutrality as an anti-theology. And the state now punishes certain unacceptable opinions as heretical. People are going to jail or being fined for having the wrong opinions.

All states are in one way or another, theocratic states because they all take a position with respect to God and His law. The state either embraces and serves God and His law within the sphere of its competence, or it rejects that obligation, and therefore says, ‘Non serviam’ [as Lucifer said to God, ‘I will not serve.’], which is a theological position. And it is a great fraud to say otherwise, but that is the great fraud of political modernity.

And everything I’ve said for the last half hour is patently obvious.

LSN: It’s only obvious, though, once we start questioning those modern political assumptions about the nature of the state and its purposes.

CF: So, what is the solution? Well, there is a solution. We live in a western world which is now composed almost entirely of democratic republics. So we have to use the only tool available to us: the power of the majority.

LSN: But that majority can go either way.

CF: Of course it can go either way, and that’s the perpetual problem of a democracy. Unless there is some divine intervention or some catastrophe which allows us to shift back into a form of government which might still have elements of democracy, but returns to an organic unity with the Church, we’re stuck in a Newtonian equilibrium of the endless tug-of-war of majorities.

LSN: But doesn’t that mean that all these people who are trying to Christianise democracies, who believe that you can take a modern liberal democracy and turn it back to Natural Law principles, are mistaken? You can’t Christianise the modern democratic state, which by its nature is opposed to Natural Law principles.

CF: I would issue a caveat. The Church and its perennial philosophy makes it clear that while the preferred form of government, because it corresponds to the government of the universe, is a monarchy, conceptually this is preferable, the Church does not oppose in principle, a democratic form of government. Pope Leo [XIII] makes this clear.

So to be an opponent of political modernity is not necessarily to be a monarchist, per se. But rather to call for Christian democracy in this sense: the people are more or less Catholic, or people entirely assent to the teaching of the Church on morality, even if as sinners they don’t necessarily live up to it. And further, the organic law of this hypothetical Christian democracy, its constitution would contain Catholic principles. Like the Irish constitution still does. An invocation of the Holy Trinity. A provision guaranteeing the sanctity of marriage, and family which some of the Latin American republics still have in their constitutions.

So then you have a more or less Catholic people, an organic law that corresponds sufficiently to the Natural Law, and therefore establishes Natural Law as the fundamental constitution of the law of the regime. And finally, some sort of concordat with the Holy See, and concordats of this kind still exist. So if you have those three elements, you could achieve a democracy that would restore the moral order.

Let me give you a concrete example of how this has happened. In Nicaragua, Manuel Ortega, the former communist dictator of the country, returned to the Church, he re-converted to Catholicism. In that overwhelmingly Catholic nation, he led a move in parliament to repeal the liberal abortion law, and now today in Nicaragua, abortion is banned without exception. So this process can be reversed by turning democracy against itself.

As St. Alphonsus Liguori wrote, what one political leader can do for the nation, a thousand missions cannot do. So if the king is Catholic, if the prince is Catholic, if the president is Catholic, and he has the organic law that permits him to do so without causing a civil war, he can restore Catholic moral order in society.

Of course, you have the perpetual problem of what happens when Daniel Ortega loses the next election. That’s insoluble unless a democratic people in reversing the process not only in particular law, but makes major changes in its organic law [constitutions], enters into a concordat with the Holy See. And then you can achieve an equilibrium in democracy that would be very hard to overturn. It might take another century to go back to [its former state].

LSN: But it’s theoretically possible…

CF: It is theoretically possible. Not only theoretically, it has happened in Nicaragua.

LSN: So, that’s a ray of hope.

CF: Yes, it is a ray of hope. It can be done, even in a country like the United States, which is after all still overwhelmingly Christian, despite the Protestant/Catholic divide, you can still wind the process [of liberalisation] to the point where we still have the [moral] capital, to allow a kind of third Great Awakening in America.

Now, that might require a world war, a total collapse of the economy, a massive failure of the power grid throughout America throwing us back to the stone age, some kind of divine chastisement of a direct nature, fire raining down from the heavens, that kind of thing.

And you never know, maybe civilisation will have to be rebooted. Maybe we will be in a scenario like that in the great novel A Canticle for Leibowitz, or maybe we’ll do it of our own accord through the operation of grace. Maybe Protestants will join with Catholics in bringing about a third Great Awakening, but we’re not without hope. This can be done.