Monday, July 30, 2007

Fides et Ratio: Religion and Law in Legal Orders Suffused by Faith

What follows is a written version of a talk given at the 10th Annual Conference of the Association for the Study of Law Culture and the Humanities, held at Georgetown University Law Center, March 23, 2007 for a panel entitled Law and Ontology.

Over the greater part of a millennium or so, the Christian world in general, and the Catholic Church’s Magisterium (see, e.g., Catechism of the Catholic Church, Part Three (Life In Christ), Section One (Man's Vocation Life In The Spirit), Chapter Three (God's Salvation: Law And Grace), Article 3 (The Church, Mother And Teacher), I (Moral Life and the Magisterium of the Church) paragraphs 2032-2040), in particular, has lavished a great attention on matters of faith and reason. In the encyclical Fides et Ratio, John Paul II reinvigorated a dialog on the power of a certain ontology (that is, of the nature of being or the kinds of things that have existence) in the production and disciplining of knowledge. John Paul II, Fides et Ratio, September 14, 1998. The current Roman Catholic Pope, Benedict XVI, whose work as Joseph Cardinal Ratzinger has been important in the life of the Roman Church for decades, has deepened that dialog.

I propose here a reverie on this very human project. I seek the condition of being lost in thought, to wander, and, by that wandering, to understand a little more, the world as others see it. This is not a linear exercise. It is not a forced march through time from a beginning to an end. This exercise is not for those wed to the ancient patterns of Hippocratic knowledge. I do not propose to identify a malady, review its symptoms, classify the aggregate of symptoms within a constructed cosmology, and apply a corrective (though I note that this ontological methodology is well beloved by the doctors of the flesh, of the law and of the Church). Nor do I propose this exercise as (an erroneous) exercise in the purported channeling of “higher” or “other” sources communicating with me (though I note that such overripe emotion substituting itself for both faith and reason is much beloved by others). Thus today’s exercise in illumination—a daydream, a wandering within a state of abstracted musing, an exercise in faith and reason.

This exercise is meant as an homage of sorts. It is an homage to the shape and power of a structure of understanding the world and the relationship of humans to it and to each other. This is laid out nicely in Fides et Ratio. Humans remain at the heart of, and describe the limits, of reason. Fides et Ratio, Introduction paragraph 1 (“It is a journey which has unfolded—as it must—within the horizon of personal self-consciousness: the more human beings know reality and the world, the more they know themselves in their uniqueness, with the question of the meaning of things and of their very existence becoming ever more pressing.” Id.). Thus the search for truth is both inward oriented (noting “the fundamental questions which pervade human life: Who am I? Where have I come from and where am I going? Why is there evil? What is there after this life?” Fides et Ratio, Introduction paragraph 1) and capable of a powerful effect on human organization. “In fact, the answer given to these questions decides the direction which people seek to give to their lives.” Id. And that is the difficulty. “It has happened therefore that reason, rather than voicing the human orientation towards truth, has wilted under the weight of so much knowledge and little by little has lost the capacity to lift its gaze to the heights, not daring to rise to the truth of being. Abandoning the investigation of being, modern philosophical research has concentrated instead upon human knowing.” (Fides et Ratio, Introduction paragraph 5). Faith is the means of overcoming those limits “to engage truth more deeply.” (Fides et Ratio, Introduction paragraph 1). “In reaffirming the truth of faith, we can both restore to our contemporaries a genuine trust in their capacity to know and challenge philosophy to recover and develop its own full dignity.” (Fides et Ratio, Introduction paragraph 6). Faith, and its instruction, then, plays a critical role in the ordering of knowledge, and its deployment in the construction of human organization. Those who can direct faith, then, control knowledge and the construction of human social, political and economic organization. (Fides et Ratio, Introduction paragraph 6 (“For it is undeniable that this time of rapid and complex change can leave especially the younger generation, to whom the future belongs and on whom it depends, with a sense that they have no valid points of reference.”)).

Fides et Ratio thus touches universals truths, and point to universal struggle. This structure forms the basis of religion, and the religion of law. It serves as our old, new and current covenants. The reconciliation of opposites, the assemblage of individuals into an organism grater than any of its parts, the elaboration of webs of power between and beyond those objects, that is the grounding of faith and reason in law and religion. It is to that project that the Roman Catholic Church has provided much illumination that will likely have influence beyond its context—now that is both faith and reason. But it is also one with which all universalizing systems of substantive conduct grapple. The shape and power of the structure of a world built on the reconciliation of binaries, its complexities and mandatory nature provides the foundation for critical modern conversations between the great universalizing systems today.

To enter the world of faith and reason is to step into a universe of binaries, and to seek the harmonization of contradiction. For John Paul II, the two "are like two wings on which the human spirit rises to the contemplation truth" (Fides at Ratio, Blessing) For Benedict, faith and reason is less poetic and more institutional (though not for that, perhaps, less beautiful to the believer—consider the incarnation of the Church through the Virgin Mary, the “Mother of the Church” John Paul II, Blessed Virgin is the Mother of the Church, L'Osservatore Romano, Weekly Edition in English, 24 September 1997, page 11). It is evidenced by the practices of the university and the coherence of Greek knowledge and Christian faith.

Within Western thought--Christian, Jewish, Enlightenment, Marxist, and post-modern—this pattern of thinking is well worn, and indeed, to some extent, foundational. The inversion and resolution of opposites has been the bread and butter of Western thought since the Greeks. Within law systems, this coherence of oppositional directions is also foundational. There is, in fact, little better way of understanding the law's urtext--the rule of law—than as a faith in an abstraction (a rule of community above person), the knowledge and love of which may bring people to the "fullness of the truth about themselves." (Fides at Ratio, at Blessing). The set up is clear—suppose a seemingly oppositional set of binaries and propose the falsity of the opposition and the unity of binaries within a greater singularity. Thus, as Cardinal Ratzinger, Benedict XVI noted that
"Faith and science, Magisterium and exegesis, therefore, are no longer opposed as worlds closed in on themselves. Faith itself is a way of knowing. Wanting to set it aside does not produce pure objectivity, but comprises a point of view which excludes a particular perspective while not wanting to take into account the accompanying conditions of the chosen point of view."

Joseph Cardnal Ratzinger, Pontifical Biblical Commission, On the 100th Anniversary of the Pontifical Biblical Commission, Relationship Between Magisterium and Exegetes, May 10, 2003, available . Faith and science, the Greek and the Christian, God and Humanity, law and morals/ethics, the Word, by the reconciliation of faith and reason converge within a single ontology. The only irreconcilable is truth and error—God and Satan—though both are united, in a sense, though a hierarchy in which truth is meant ultimately to prevail.

The Roman Church’s tussle with union of ratio and fides is directed to two struggles that are intertwined but distinct, and point to a third for which the first two provide an analytical template. The first touches on the long struggle between religion and secular universalist ontologies. The second touches on the equally long struggle within religion and related to the rationality of religion—the problem of faith in an irrational God or an irrational faith in a savage God. The third touches on the relationship of human systems, especially law systems, to reason and faith.

The current incarnation of the dialog is conceptually interesting if only for the ways in which it connects to current religious and political currents. Faith and reason, in the 21st Century touch on the dialogue between the religion and the post Enlightenment secular political order, on the one hand. The struggle is against “systems that espoused the cause of rational knowledge sundered from faith and meant to take the place of faith.” (Fides et Ratio, Chapter 4 Paragraph 45). Such separation of faith from reason, or the substitution of a rationalist faith to support reason, can only lead to bad things—Fides and Ratio defines these erroneous and faithless errors as rationalism, Benedict XVI, as Joseph Cardinal Ratzinger, nicely articulated its most important current incarnation in his successful crusade against so called “Liberation Theology.” See Congregation For The Doctrine Of The Faith, Instruction On Certain Aspects Of The "Theology Of Liberation" Aug. 6, 1984. The incompleteness of knowledge without context, of reason with faith, leads to error and the inability to build authentic community or to deploy knowledge appropriately, that is, not self destructively. These errors are described as ones of eclecticism (use of disparate learning without regard for their internal coherence or historical context, a rationalist Frankensteinism; Fides et Ratio at paragraph 86), historicism (denying the validity of an ahistorical truth, Fides et Ratio paragraph 87), scientism (rejection of “the validity of forms of knowledge other than those of the positive sciences, Fides et Ratio paragraph 88), pragmatism (a system that precludes “theoretical considerations or judgments based on ethical principles,” Fides et Ratio, paragraph 89), positivism (positing the meaninglessness of metaphysics, Fides et Ratio paragraph 88), and in postmodernity (described as a world embracing the absence of meaning, Fides et Ratio paragraph 91), to the greatest error of nihilism (characterized as the denial of the humanity and identity of the human being, Fides et Ratio paragraph 90). Nihilism is said to engender despair; positivism indulges the illusion that “thanks to scientific and technical progress, man and woman may live as a demiurge, single handedly and completely taking charge of their destiny.” Fides et Ratio, paragraph 91.

Faith and reason also touch on that increasingly important dialogue within Christianity, and between Christianity and other religions, particularly Islam. On the one hand, Catholic Pontiffs of the last generation have sought to draw on the similarities of faith to combat the faithless reason represented by secular society. See John Paul II, Apostolic Journey To Africa, Remarks On Meeting Of John Paul II With The Muslim Leaders, Nairobi (Kenya), 7 Mai 1980 (“Prayer, almsgiving and fasting are highly valued in both of our respective traditions and are beyond doubt a splendid witness to a world that runs the risk of being absorbed by materialism. Our relationship of reciprocal esteem and the mutual desire for authentic service to humanity urge us on to joint commitments in promoting peace, social justice, moral values and all the true freedoms of man”). On the other hand, the same Pontiffs have sought to combat faith without reason, both within Christian thinking and as part of the religious beliefs of others. “There are signs of a resurgence of fideism, which fails to recognize the importance of rational knowledge and philosophical discourse for an understanding of faith, indeed for the very possibility of a belief in God.” (Fides et Ratio, Chapter 4 Paragraph 55). Referring to the issue of religious terrorism, John Paul II noted:
Terrorism is often the outcome of that fanatic fundamentalism which springs from the conviction that one's own vision of the truth must be forced upon everyone else. Instead, even when the truth has been reached—and this can happen only in a limited and imperfect way—it can never be imposed. Respect for a person's conscience, where the image of God himself is reflected (cf. Gen 1:26-27), means that we can only propose the truth to others, who are then responsible for accepting it. To try to impose on others by violent means what we consider to be the truth is an offence against human dignity, and ultimately an offence against God whose image that person bears.

John Paul II, Message Of His Holiness Pope John Paul II For The Celebration Of The World Day Of Peace, 1 January 2002, No Peace Without Justice No Justice Without Forgiveness. John Paul II condemned irrational faith directly: “We also need to heed the question which comes to us from the depths of this abyss: that of the place and the use made of religion in the lives of people and societies. Here I wish to say once again, before the whole international community, that killing in the name of God is an act of blasphemy and a perversion of religion.” John Paul II, Address to the Diplomatic Corps, January 10, 2002.

And the dialog of faith and reason has great implications for our understanding of secular rule of law concepts, so beloved of that other “Congregation for the Doctrine of the Faith” (the global elite legal community), from a “faith” perspective. In many ways, rule of law discourse mimics the dialogue leading to the construction of a moral system in law, a substantive rule of law, grounded in a secular conception of human dignity and human rights at a level of governance above (and beyond) the state. See, e.g., Michael Rosenfeld, The Rule of Law and the Legitimacy of Constitutional Democracy, 74 Southern California Law Review 1307 (2001); Larry Catá Backer, God(s) Over Constitution, Law at the End of the Day, January 8, 2007. But the religious dimension of this construction is also becoming important in a world that appears to be moving with some determination toward a new socio-political accommodation with institutional religion.

The three fronts in the struggle for the reconciliation of falsely oppositional binaries—faith and reason, religion and secularism, and Christianity and Islam—came together nicely in Benedict XVI’s now notorious address to the faculties at Regensberg University in 2006. Benedict XVI, Apostolic Journey Of His Holiness Benedict Xvi To München, Altötting And Regensburg, (September 9-14, 2006), Meeting With The Representatives Of Science, Lecture Of The Holy Father, Aula Magna of the University of Regensburg, Tuesday, 12 September 2006, Faith, Reason and the University (Official revised version) (original version). I have discussed elements of this remarkable talk elsewhere. See Larry Catá Backer, Benedict XVI, Islam and the Politics of Abusive Discourse, Law at the End of the Day, September 16, 2006. I focus here on the reconciliation of binaries and the struggle against faithless reason and irrational faith.

For Benedict, modern secularism is unfulfilled because it represents a faithless reason.
The intention here is not one of retrenchment or negative criticism, but of broadening our concept of reason and its application. While we rejoice in the new possibilities open to humanity, we also see the dangers arising from these possibilities and we must ask ourselves how we can overcome them. We will succeed in doing so only if reason and faith come together in a new way, if we overcome the self-imposed limitation of reason to the empirically falsifiable, and if we once more disclose its vast horizons. . . . Here I am reminded of something Socrates said to Phaedo. In their earlier conversations, many false philosophical opinions had been raised, and so Socrates says: "It would be easily understandable if someone became so annoyed at all these false notions that for the rest of his life he despised and mocked all talk about being - but in this way he would be deprived of the truth of existence and would suffer a great loss".
Faith, Reason and the University, supra (original version). And it ignores the socio-cultural foundations of European rationalism. “We can also express this the other way around: this convergence, with the subsequent addition of the Roman heritage, created Europe and remains the foundation of what can rightly be called Europe.” Id. It follows that reason without faith id deficient in material respects. “The West has long been endangered by this aversion to the questions which underlie its rationality, and can only suffer great harm thereby. The courage to engage the whole breadth of reason, and not the denial of its grandeur - this is the programme with which a theology grounded in Biblical faith enters into the debates of our time.”

Religion can serve as the point of reconciliation of faith and reason. But not all religion. An irrational religion can, in its own way, suffer the same deficiencies as a faithless reason. Referring to the production of the Septuagint and the reconciliation of Greek knowledge and Jewish faith, Benedict describes “A profound encounter of faith and reason is taking place here, an encounter between genuine enlightenment and religion. From the very heart of Christian faith and, at the same time, the heart of Greek thought now joined to faith, Manuel II was able to say: Not to act "with logos" is contrary to God's nature.” Faith, Reason and the University, supra (original version). Thus the problem of the irrational in religion. “Is the conviction that acting unreasonably contradicts God's nature merely a Greek idea, or is it always and intrinsically true? I believe that here we can see the profound harmony between what is Greek in the best sense of the word and the biblical understanding of faith in God.” Id. For Benedict, the answer is clear: God and reason are inextricably intertwined. He rejects the possibility of “a capricious God, who is not even bound to truth and goodness” (id.) as a legitimate expression of an authentic Diety. Thus religion, to be authentic, must be rational, and rational in a way that accords with settled notions of that term. It follows that any suggestion of members of the community of Islam of a possibility of divine irrationality and the power of violence, must be inauthentic. Benedict, like his religious predecessors, can search for an “authentic” Islam, created in the image of the Roman Catholic Church, even as he rejects the religious legitimacy of other variants.
I wish to reaffirm the Catholic Church’s respect for Islam, for authentic Islam: the Islam that prays, that is concerned for those in need. Recalling the errors of the past, including the most recent past, all believers ought to unite their efforts to ensure that God is never made the hostage of human ambitions. Hatred, fanaticism and terrorism profane the name of God and disfigure the true image of man.
John Paul II, Address on the Pastoral Visit in Kazakhstan, Meeting With Representatives of the World of Culture, Auditorium of the Congress Hall, Astana, Kazakhstan, 24 September 2001, available . This is a powerful temptation, and exercise. It is one that the secular West has recently indulged in repeatedly. See Larry Catá Backer, Of Political States and Soft Religion as the Basis for State Organization, Law at the End of the Day, July 16, 2007.

Central to the unity of Greek and Christian, faith and reason, Christianity and Islam, God and Humanity, is Logos.
“John thus spoke the final word on the biblical concept of God, and in this word all the often toilsome and tortuous threads of biblical faith find their culmination and synthesis. In the beginning was the logos, and the logos is God, says the Evangelist. The encounter between the Biblical message and Greek thought did not happen by chance. The vision of Saint Paul, who saw the roads to Asia barred and in a dream saw a Macedonian man plead with him: "Come over to Macedonia and help us!" (cf. Acts 16:6-10) - this vision can be interpreted as a "distillation" of the intrinsic necessity of a rapprochement between Biblical faith and Greek inquiry.”
Faith, Reason and the University, supra (original version). This synthesis in Logos, reason and self-communication, is the bridge to other faiths and other systems of ethics. “Christian philosophers can develop a reflection which will be comprehensible and appealing to those who do not gasp the full truth which divine Revelation declares.” (Fides et Ratio, paragraph 104). Communication permits collaboration, since “understanding and dialogue is all the more vital nowadays, since the most pressing issues facing humanity—ecology, peace and the co-existence of different races and cultures, for instance—may possibly find a solution if there is a clear and honest collaboration between Christians and the followers of other religions” and others sharing “at heart the renewal of humanity.” (Fides et Ratio, paragraph 104). And communication/collaboration might lead to evangelization. (Fides et Ratio, paragraph 103) (“This attention to philosophy too should be seen as a fundamental and original contribution in service of the new evangelization”). All of these resolutions may lead to the ultimate resolution of a universalizing creed—the assertion of a legitimate authority over the human community. “A philosophy in which there shines even a glimmer of the truth of Christ, the one definitive answer to humanity’s problems, will provide a potent underpinning for the true and planetary ethics which the world now needs.” (Fides et Ratio, paragraph 105).

These great themes haunt modern universalist rule of law systems as well. Modern intenationalist rule of law systems have been built on that greatest diálesis of the 20th century—between an overripe nationalism in Europe (and thereafter in the parts of the globe colonized by European states) and individual human dignity. It too seeks communication, and collaboration. It means to evangelize the community of nations and ultimately provide the community of states with a planetary system of political ethics and mores which reflect the beliefs and truths of humanity organized within the family of nations. It, too, seeks a union of reason (rechtsstaad) and faith (the sozialstaad or social welfare state norms), but now disciplined by the norms of the collective of humanity organized in states. Internationalism has added a dimension to constitutional rule of law now written in the constitutions of nations. Law systems, like religious ones, contemplate this union of reason (process) and faith (the overarching framework of constraints on power).

Thus a great immersion in fides and ratio, diálesis (controversy) and Logos. This immersion in fides and ratio at last prepares us to nestle in the embrace of a knowledge of unity from coupling. This coupling suggests the infinite. But the allusion to coupling is telling. The embrace of faith and reason is restless and fickle—it is temporal and partial. Within its embrace, and at the moment of climax, it looks within to find its universe of form and meaning. It seeks to join together for the approach to Truth. Logos, truth, then serves as both the projection outward and the limiting barrier of faith and reason.

Fides thus suggests the foundation of Truth—it is bounded, but within its boundaries embraces the world. Logos, understood as encompassed within the corporeal body of Christ in the world, suggests this conception of Truth. It is contained within discernible limits (the body of Christ or of doctrine or belief, etc.)) yet within this membrane, encompassing all (God).

Faith is the great disciplinarian. But faith itself is the verb, a mechanics which incorporates those postulates and assumptions that together constitute lived Truth in reason. Thus the body of Christ as faith and reason. “Logos means both reason and word - a reason which is creative and capable of self-communication, precisely as reason. John thus spoke the final word on the biblical concept of God, and in this word all the often toilsome and tortuous threads of biblical faith find their culmination and synthesis.” Faith, Reason and the University, supra (original version).

Beyond truth lies the irrational, the disordered, the outlaw.

Beyond truth is inversion of a necessarily ordered world.

Beyond truth there is. . .nothing.

And in this Benedict is right. Self-constituted communities are bounded by the Truth of their constitution, a truth that necessarily embodies faith and reason in the sense that Benedict describes. Political communities like religious and social communities, are bounded by the Truth of their constitution—rationally bounded by rules and understandings within which the infinite is possible. Faith provides the ongoing principles of that community—its morals, ethics and theology. Reason serves as the means to incorporation and application of those principles.

Where the community of the faithful includes the world, the internal workings of faith on reason becomes the paramount relationship. The body of the Divine defines the extent of reality; it serves without limit. But in a world in which multiple communities of the faithful exist, and where the scope of faith communities are functionally differentiated (political, economic, etc.), then faith and reason acquire a different direction—communication, collaboration, and evangelization (diálesis) rather than Logos. This is a world with many bodies of the Divine, internally infinite, yet externally limited by the body of faith. In this world, and within that diálesis, an overcoming of parochial faith (one that is inwardly infinite and outwardly limited) might be possible, or power relationships played out. I suspect that faith and reason in this century produces a bit of both.

Indeed, from Peter Fitzpatrick’s excellent discussion of the “Laws of Thomas Hobbes,” presented at the 10th Annual Conference of the Association for the Study of Law, Culture and the Humanities, Georgetown University Law Center, Washington, D.C., March 24, 2007, it is possible to illuminates parallels in the construction of the body of “Law” with that of the body of “faith” elaborated in Fides et Ratio. Fitzpatrick starts his reading of Hobbes’ Leviathan in the usual way: positing that the state of nature gives rise to natural laws. The primal contract, the primal covenant, produces the state from out of nature. But that is the essence of the rule of law. Leviathan is limited by the nature of the covenant ceding power (in this case essentially to protect life), and thus limited by the natural law from which it arises. Higher (or lower) law thus constrains the sovereign, the breach of which will (eventually) bring the sovereign down. We move here from a reading of Hobbes as advocating absolute sovereignty, to one of the sovereign as constrained—beyond the boundaries of sovereign authority there is nothing, yet within the authority of the sovereign the possibilities are infinite. Thus the power of reason is constrained by the limits of faith: Leviathan (and law systems generally), like faith communities, are constrained within its body (borders). Yet within those borders there is unconstrained freedom of the sort described in Fides et Ratio (or unrestrained power to the sovereign authority). These borders are territorial (physical borders), temporal (finitude), topical (limited by scope or subject matter), or vertical/foundational (rule systems constituting the sovereign; the body of God; Logos). And thus the relation between law and religion in faith and reason in this system: law is shaped by popular desire, operating within its collective boundary norms. Popular desire is shaped by religion (which operates within its own boundary norms). In secular political systems, doctors of religion may not subvert the boundary norm systems of law. Still, they assert a certain authority on civil society (by shaping popular desire). Religion in this way exerts a powerful parallel and indirect effect on law.

Consider this in the context of the diálesis between the Hellenized Christian faith of which Benedict speaks, Islam and the secular. For the Hellenized Greek Islam may be an exemplar of the irrational faith because it is unmoored to Truth. As a consequence it can rationally conflate Truth and violence. Secularism is disordered because in rejecting Truth (faith) it serves other (and lesser) masters. This leads secularism away from truth and ultimately towards the irrational.

For Islam, Christian truth is itself a subterfuge and a blasphemy. It purports to channel the will of God within parameters to which God may not have consented and which leads away from Truth as submission to the will of God. Secularism is disorder. It is a mockery of the divine order and its inversion.

For the secularist, Christianity is artificially constrained and itself inverted, positing the end point of reason as its starting point. Islam is the sum of its actions—violence at times. That violence is real, and reason suggests it ought to be appeased and feared. Yet as its violence diminishes so does its power.

Power relationships in the future will have to confront faith and reason on these terms. There is a bit of irony in the terms Benedict XVI confronts these issues.
“The courage to engage the whole breadth of reason, and not the denial of its grandeur - this is the programme with which a theology grounded in Biblical faith enters into the debates of our time. "Not to act reasonably, not to act with logos, is contrary to the nature of God", said Manuel II, according to his Christian understanding of God, in response to his Persian interlocutor. It is to this great logos, to this breadth of reason, that we invite our partners in the dialogue of cultures. To rediscover it constantly is the great task of the university.”
Faith, Reason and the University, supra (original version). Diálesis in this century may require all systems of Logos to confront both the infinite possibilities within their frameworks, and the limitations of those possibilities across frameworks.

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