Ecce Homo: Reflections on Benedict XVI's Careful Comments to the United Nations

In hope we were saved (spe salvi facti sumus) (Rom 8:24)). So Benedict XVI chose to begin an encyclical delivered on November 30, 2007. Benedict XVI, Encyclical, Spe Salvi, Nov. 30, 2007. I was reminded of a critical portion of that encyclical on the occasion of Benedict XVI's address to th United Nations. Benedict XVI, Address of Benedict XVI to the Members of the United Nations General Assembly, New York, NY, April 18, 2008. Benedict XVI made this point with emphasis:

Let us put it very simply: man needs God, otherwise he remains without hope. Given the developments of the modern age, the quotation from Saint Paul with which I began (Eph 2:12) proves to be thoroughly realistic and plainly true. There is no doubt, therefore, that a “Kingdom of God” accomplished without God—a kingdom therefore of man alone—inevitably ends up as the “perverse end” of all things as described by Kant: we have seen it, and we see it over and over again. Yet neither is there any doubt that God truly enters into human affairs only when, rather than being present merely in our thinking, he himself comes towards us and speaks to us. Reason therefore needs faith if it is to be completely itself: reason and faith need one another in order to fulfil their true nature and their mission.

Spe Salvi, supra, paragraph 23. Faith as the ordering construct of human relationships, through which reason is given effect (and is separated from unreason--the Luciferian abstraction of self love) in the context of the evangelizing mission of the Church, provides a framework through which Benedict XVI's comments to the General Assembly become easier to understand. The address to the magisterium of the political order was not just a message of faith but a formula for the interaction of church and state--faith and reason--in the ordering of the human community as state and religious communities. The clues to its bases are evident in Spe Salvi.

What this means is that every generation has the task of engaging anew in the arduous search for the right way to order human affairs; this task is never simply completed. Yet every generation must also make its own contribution to establishing convincing structures of freedom and of good, which can help the following generation as a guideline for the proper use of human freedom; hence, always within human limits, they provide a certain guarantee also for the future. In other words: good structures help, but of themselves they are not enough. Man can never be redeemed simply from outside.

Spe Salvi, supra, paragraph 25. Yet Benedict XVI's analysis is based (necessarily from the perspective of his own faith) in assumptions about the nature of the secular and the political, that provide an interesting point for interrogation, because, in his own way, Benedict arrives at an understanding of the relationship between the religious and the political that in some ways mirrors that coming out of Qom. See Larry Catá Backer, God(s) Over Constitution, 27 Mississippi College Law Review 11 (2008). For this reason alone, the address is worth parsing.

Benedict starts the address with a bit of historical connection and first principles. He suggests that his views are not individual but institutional, it is not the man but the magisterium speaking. "As Pope John Paul II expressed it in 1995, the Organization should be “a moral centre where all the nations of the world feel at home and develop a shared awareness of being, as it were, a ‘family of nations’” (Address to the General Assembly of the United Nations on the 50^th Anniversary of its Foundation, New York, 5 October 1995, 14)." Address of Benedict XVI to the Members of the United Nations General Assembly, at paragraph 1. He noted that "The founding principles of the Organization – the desire for peace, the quest for justice, respect for the dignity of the person, humanitarian cooperation and assistance – express the just aspirations of the human spirit, and constitute the ideals which should underpin international relations. " Id.

But being a moral center does not mean, for Benedict, the same thing as being the source of morality--even political morality. "Through the United Nations, States have established universal objectives which, even if they do not coincide with the total common good of the human family, undoubtedly represent a fundamental part of that good. " Address of Benedict XVI to the Members of the United Nations General Assembly, supra Paragraph 2.

Instead, Benedict suggests that the United Nations serves as a means through which a higher morality is served. This is especially so since all states are bound by this common and superior morality, which permits no unilateralism. These notions are expressed early in in the address and in a manner that gently rebukes the United states and other powers for pushing their own political morality unilaterally over the higher morality articulated in part by the United Nations to which they are bound.

The United Nations embodies the aspiration for a “greater degree of international ordering” (John Paul II, Sollicitudo Rei Socialis, 43), inspired and governed by the principle of subsidiarity, and therefore capable of responding to the demands of the human family through binding international rules and through structures capable of harmonizing the day-to-day unfolding of the lives of peoples. This is all the more necessary at a time when we experience the obvious paradox of a multilateral consensus that continues to be in crisis because it is still subordinated to the decisions of a few, whereas the world’s problems call for interventions in the form of collective action by the international community.

Address of Benedict XVI to the Members of the United Nations General Assembly, supra Paragraph 2. The higher morals to which the United Nations aspires, and which it can only express in part, is meant to serve the human family. States, by necessity can only reach that family partially. All states together, guided by the binding power of higher morality, are obliged to act in concert for the benefit of the human family. Politics, thus, serves morality.

Since rights and the resulting duties follow naturally from human interaction, it is easy to forget that they are the fruit of a commonly held sense of justice built primarily upon solidarity among the members of society, and hence valid at all times and for all peoples. This intuition was expressed as early as the fifth century by Augustine of Hippo, one of the masters of our intellectual heritage. He taught that the saying: Do not do to others what you would not want done to you “cannot in any way vary according to the different understandings that have arisen in the world” (De Doctrina Christiana, III, 14).

Address of Benedict XVI to the Members of the United Nations General Assembly, supra Paragraph 8. The only divisions that ought to matter, it seems, are religious. The gloss on this passage might be well provided from an interesting quarter--Benedict XVI's address to Catholic educators the day before the united Nation's speech:

"The Church’s mission, in fact, involves her in humanity’s struggle to arrive at truth. In articulating revealed truth she serves all members of society by purifying reason, ensuring that it remains open to the consideration of ultimate truths. Drawing upon divine wisdom, she sheds light on the foundation of human morality and ethics, and reminds all groups in society that it is not praxis that creates truth but truth that should serve as the basis of praxis. Far from undermining the tolerance of legitimate diversity, such a contribution illuminates the very truth which makes consensus attainable, and helps to keep public debate rational, honest and accountable.

Benedict XVI, Address to Catholic Educators, Washington, D.C., April 17, 2008. This mission ties faith reason and community within a tightly bound web. "Church’s primary mission of evangelization, in which educational institutions play a crucial role, is consonant with a nation’s fundamental aspiration to develop a society truly worthy of the human person’s dignity." Id. For Benedict the road is clear--it is not the practice of the community of nations that creates truth (for example the Universal Declaration of Human Rights as a consensus among states and their traditions), but universal truth that binds states to an appropriate practice. Thus, Benedict XVI reasons, "Truth means more than knowledge: knowing the truth leads us to discover the good. Truth speaks to the individual in his or her entirety, inviting us to respond with our whole being." Id. Truth and its understanding of the absolute relation between good, evil and action are bound up in "the vision of the Logos, God’s creative Reason, which in the Incarnation, is revealed as Goodness itself. Far from being just a communication of factual data – “informative” – the loving truth of the Gospel is creative and life-changing – “performative” (cf. Spe Salvi, 2). "" Id. Legitimacy, faith, morals and action--there is little room for the truths of the community of nations expressed merely in their actions--customary international law without morals is no law at all. In this sense, Benedict XVI strikes hard at the core of the construction of the global world order built from out of the ashes fo the Second World War and enshrined in the secular internationalism of the United Nations.

In this context, as well, law assumes its principal role as instrument of moral rather than as thing in itself. Speaking of the United Nation's Universal Declaration of Human Rights, Benedict XVI argues that "When presented purely in terms of legality, rights risk becoming weak propositions divorced from the ethical and rational dimension which is their foundation and their goal." Address of Benedict XVI to the Members of the United Nations General Assembly, supra Paragraph 8. Rule of law ought not to infuse law with the power of Logos. For Benedict the two are distinct, with law clearly subordinate and passive. "Human rights, then, must be respected as an expression of justice, and not merely because they are enforceable through the will of the legislators." Id. There is no place in Benedict's world construct for a higher customary law unless it be moral and universal and inspired by a faith tradition outside of the human group that seeks thus to legitimate its community. Americas are coming more to this view as they shed themselves of their original understanding of law as shared communal expression and move to a more imperial view of law as sourced in a superior body (the legislator). See Larry Catá Backer, Reifying Law: Understanding Law Beyond the State, 26(3) PENN STATE INTERNATIONAL LAW REVIEW – (forthcoming 2008).

As well ere there is more here than meets the eye. Again, Spe Salvi provides a useful gloss to the U.N. Address and supplies its necessary context in religion (in general) and Roman Catholic Christianity (in particular):

The atheism of the nineteenth and twentieth centuries is—in its origins and aims—a type of moralism: a protest against the injustices of the world and of world history. A world marked by so much injustice, innocent suffering, and cynicism of power cannot be the work of a good God. A God with responsibility for such a world would not be a just God, much less a good God. It is for the sake of morality that this God has to be contested. Since there is no God to create justice, it seems man himself is now called to establish justice. If in the face of this world's suffering, protest against God is understandable, the claim that humanity can and must do what no God actually does or is able to do is both presumptuous and intrinsically false. It is no accident that this idea has led to the greatest forms of cruelty and violations of justice; rather, it is grounded in the intrinsic falsity of the claim.

Spe Salvi, supra, paragraph 42.

Matters of morality, then, cannot be left to the expression of the political will of states, even expressed democratically. "Discernment, then, shows that entrusting exclusively to individual States, with their laws and institutions, the final responsibility to meet the aspirations of persons, communities and entire peoples, can sometimes have consequences that exclude the possibility of a social order respectful of the dignity and rights of the person. " Address of Benedict XVI to the Members of the United Nations General Assembly, supra Paragraph 10.

Benedict thus rejects the basic notion of the sort of constitutionalism on which 18th and 19th century democratic states were founded--the idea that the people are the source of rights and duties and may bind themselves to those rights ands duties, however discerned. The unique genius of each people (demos) is uniquely expressed in the highest form of their self organization, their constitutions. Those constitutions may express that will in any number of ways, and are not lightly limited. These instruments certainly may not be limited by the institutional interference of outsiders or outsider ideas. And the moral impulse of such instruments must also accord with and reflect the will of the majority of those who choose to bind themselves thereto, whatever its source. In Employment Div. v. Smith, 494 U.S. 872 (1990) Justice Scalia reminded his audience of the very different basis of American constitutionalism:

"Values that are protected against government interference through enshrinement in the Bill of Rights are not thereby banished from the political process. . . . But to say that a nondiscriminatory religious practice exemption is permitted, or even that it is desirable, is not to say that it is constitutionally required, and that the appropriate occasions for its creation can be discerned by the courts. It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs."

Id.. But not by Benedict XVI. Still, even Americans, for the most part, no longer believe that there is no higher law above the constitution in the sense, at least, that the American public might, for example, be able legitimately to amend the Constitution to permit slavery or to disenfranchise women. But from where do those norms derive. Before the 1990s, most Americans might have agreed with the post Second World War generation that those norms are inherent in (and bounded only by) consensus among legitimately constituted states. And, indeed, to some extent, the complex web of regional human rights instruments, and United Nations "hard" and "soft" law, reflect a global appetite for the construction of legitimating norms at the political level (from whatever sources derived). These notions provided the great impetus to American thinking behind what emerged as the great post war constitutions of Japan and Germany.

But Benedict has something else in mind. Speaking of the United Nation's Universal Declaration of Human Rights, Benedict suggests that the norms described therein "are based on the natural law inscribed on human hearts and present in different cultures and civilizations. Removing human rights from this context would mean restricting their range and yielding to a relativistic conception, according to which the meaning and interpretation of rights could vary and their universality would be denied in the name of different cultural, political, social and even religious outlooks. This great variety of viewpoints must not be allowed to obscure the fact that not only rights are universal, but so too is the human person, the subject of those rights." Address of Benedict XVI to the Members of the United Nations General Assembly, supra Paragraph 6. And Spe Salvi yet again provides the gloss. "A world which has to create its own justice is a world without hope. No one and nothing can answer for centuries of suffering. No one and nothing can guarantee that the cynicism of power—whatever beguiling ideological mask it adopts—will cease to dominate the world." Spe Salvi, supra, paragraph 42.

And thus the place of religiously derived morals at the pinnacle of the construction of global political norms to which the laws of all states ought to be subject: "Refusal to recognize the contribution to society that is rooted in the religious dimension and in the quest for the Absolute – by its nature, expressing communion between persons – would effectively privilege an individualistic approach, and would fragment the unity of the person." Address of Benedict XVI to the Members of the United Nations General Assembly, supra Paragraph 11. This idea--that the expression of the communal will and the search for the Absolute is bothy necessary and requires the intervention of religious communities (and principally their governance and interpretive institutions--their magisteria) in shaping the understanding of the normative dimensions of law, also requires a broadening of religious participation in internal politics. In a manner sounding much like American supporters of soft Islamic state constitutions in Iraq and Afghanistan (but presumably not in the United States) Benedict proposes that "The full guarantee of religious liberty cannot be limited to the free exercise of worship, but has to give due consideration to the public dimension of religion, and hence to the possibility of believers playing their part in building the social order." Id. Separation of Church and State is, for Benedict as false a construct as the separaton of faith from reason.

There is no hiden meaning here. Benedict XVI invites a consideration of Spe Salvi and its relation to the suggesitons he makes to the assembled ministers at the United Nations. "In my recent Encyclical, Spe Salvi, I indicated that “every generation has the task of engaging anew in the arduous search for the right way to order human affairs” (no. 25). . . . That is why the Church is happy to be associated with the activity of this distinguished Organization, charged with the responsibility of promoting peace and good will throughout the earth. " Address of Benedict XVI to the Members of the United Nations General Assembly, supra Paragraph 14. Benedict would remind his audience of his view of evil--the construct6ion of interpretive norms beyond religion. "We have all witnessed the way in which progress, in the wrong hands, can become and has indeed become a terrifying progress in evil. If technical progress is not matched by corresponding progress in man's ethical formation, in man's inner growth (cf. Eph 3:16; 2 Cor 4:16), then it is not progress at all, but a threat for man and for the world." Spe Salvi, supra at 22. An outside hand is necessary--but that hand cannot be the community of nations, it must be the Divine order administered through the instruments of Divine will, institutionally constructed, with an oversight power on earth.

And so we come to the great contribution of this speech, at least for those interested in international relations--the subject considered by Benedict XVI for this august audience. It seems that political legitimacy requires an adherence to legitimate substantive norms, which may only be derived from those universal truths beyond the reach of individuals or even communities of the faithless. Only faith communities can legitimately provide those norms--a notion echoed elsewhere by the faith communities of Islam and institutionalized in constitutions from that vary in form from that of Saudi Arabia to that of Iran. See Larry Catá Backer, God(s) Over Constitution, 27 Mississippi College Law Review 11 (2008). But Benedict is suggesting something more than the control of morals within states. He suggests, as a matter of international relations, that institutionalized religion ought to serve as autonomous participants along with states in the construction of those universal norms that might legitimately bind states in their external as well as internal relations.

In a manner that is consistent with her contribution in the ethical and moral sphere and the free activity of her faithful, the Church also works for the realization of these goals through the international activity of the Holy See. Indeed, the Holy See has always had a place at the assemblies of the Nations, thereby manifesting its specific character as a subject in the international domain. As the United Nations recently confirmed, the Holy See thereby makes its contribution according to the dispositions of international law, helps to define that law, and makes appeal to it.

Address of Benedict XVI to the Members of the United Nations General Assembly, supra Paragraph 12. According to this wisdom, it is time now for institutionalized religion to meet its obligations within the political sphere--and not just the Holy See. Faith communities--Jewish, Muslim, Buddhist, Non-Catholic Christian and the like must also take their place as subjects of international law and participants therein. In the absence of that ecumenism, the Logos might be distorted through the error of individuals who do not represent the totality of faith on Earth. Benedict believes that "Discernment, that is, the capacity to distinguish good from evil, becomes even more essential in the context of demands that concern the very lives and conduct of persons, communities and peoples." Id., at paragraph 8. For that purpose "a vision of life firmly anchored in the religious dimension can help to achieve this, since recognition of the transcendent value of every man and woman favours conversion of heart, which then leads to a commitment to resist violence, terrorism and war, and to promote justice and peace. " Id., at paragraph 9. For this purpose

Benedict XVI, of course, does not mean to lobby vigorously on behalf of other faith communities--he is charged with the triumph of his own. But his ideas--as Logos--might necessarily proceed beyond the mouth of the man who utters them. Yet he does wind up suggesting a place for formally constituted faith communities at the political table--as subjects of international law. Before dismissing these ideas as unusual--consider how much closer the world order is becoming to legitimating autonomous religious participation in political norm construction after 2001 than it was before then. It is not for nothing that the greatest source of political vigor in this century has sought power in its connection with something outside of the community it seeks to bind. From Chinese scientific determinism to Catholic Logos, to Islamic Shar'ia, to Jewish law. All may someday share a place at the political table as critical actors in the construction of substantive higher law, and all may invoke the protection of the communities of the faithful in the preservation of their communities and the territories served by them.

Religious communities might then be joined by economic enterprises as subjects of international law as well. Many who might dismiss the place of religious communities have been seeking to treat other non state communities, principally multinational corporations, as subjects of international law for years. See Larry Catá Backer, Multinational Corporations as Objects and Sources of Transnational Regulation, Law at the End of the Day, March 29, 2008. It is hard to distinguish one from the other. And Benedict XVI makes as strong a case for the binding of communities of faith within the political order as he makes for the binding of the political order within the normative orders of faith communities. For faith communities "in the world" may not so readily seek to escape its rules when the global magisterium speaks within the ambit of its own authority. The possibilities this opens are interesting indeed.