Dobbs/Schmitt

It appears that the originalist position in the Dobbs case is to remove the federal government from the debate over abortion and return the matter to the states. I have recently criticized this view as morally incoherent, relying on the Lincoln-Douglas Debates. What I have called “Little Giant Constitutionalism,” in honor of Stephen Douglas’s popular sovereignty, which the originalists in Dobbs echo, is not an answer to a moral crisis. However, there are, I think, other grounds to critique the originalist position in Dobbs—grounds drawn from a surprising source: Carl Schmitt.

I have on several occasions written about Carl Schmitt’s 1960 essay, The Tyranny of Values, which he expanded in 1967 with a lengthy introduction. It is, I think, one of the essential texts for understanding the world in 2021. Value for Schmitt (echoing Martin Heidegger) was an ersatz—for virtue, for the natural law, indeed even for the metaphysical. In Schmitt’s genealogy, the replacement of these concepts by value is fundamentally a nineteenth-century response to scientific positivism. Unfortunately, Schmitt demonstrated, despite the intentions of such a replacement, the logic of value leads to the war of all against all.

The unmediated enforcement of values—and values always must be enforced to be valid—is total war. Schmitt put it like this: “The non-value has no right with regard to the value, and for the enactment of the highest value no price is too high. Here then there are, by consequence, only annihilator and annihilated.” In 1960, Schmitt was appalled by the specter of scientific weapons. In 2021, one finds that technology allows much less concretely destructive enforcement of values—cities are not flattened—but only because the bearer of non-values can be made a non-person, given no right or quarter, without recourse to such weapons.

One of the reasons I find The Tyranny of Values so compelling is that it seems to provide the clearest account for the constant struggle in online spaces, in academic and corporate spaces, and now in some government spaces over any number of ideas. These ideas are taken for the most part as values and fall into the circuit of value-enforcement described by Schmitt. What is cancellation but the enforcement of values on the bearers of non-values? The tyranny of values, the consequences of modern value philosophy, described by Schmitt explains, I think almost perfectly, the merciless, constant struggle against the bearers of non-values by the bearers of the highest values.

One finds Schmitt’s notion of value philosophy and the consequences of values in other places, though. Schmitt’s essay was subtitled Reflections of a Jurist on Value Philosophy and the juristic dimension preoccupied him. One can find this juristic dimension even today and even in the United States. Originalism, for example, was, I think, in part a response to the value-enforcement of the Warren Court. Robert Bork’s seminal 1971 Indiana Law Journal essay, one of the foundational texts of originalism, argues that the Warren Court had imperiled its neutrality and therefore its legitimacy by getting into the business of enforcing certain values in an immediate way. Originalism becomes a way of restraining the enforcement of value. We can short-circuit the war of all against all that the logic of values entails, the originalist argues, by adopting putatively neutral principles based upon the history of the Constitution.

Of course, one ought to pause for a moment at the idea of history conceived in this sense. Charles de Koninck, in a 1940 speech to the American Catholic Philosophical Association, The Principle of the New Order, which is usually bound up with his The Primacy of the Common Good Against the Personalists, lacerated the concept of a scientific history. In De Koninck’s account, the idea of a history divorced from prudence, from practical wisdom, and dissolved into objectivity regardless of the subjective dispositions of the historian is ordered to the emancipation of man considered purely as man. In other words, the idea of a historian judging historical events objectively, through mere knowledge, without considering the rectitude of his own appetites is another step on the road to the emancipation of man as pure artifex and the exaltation of the practical over the speculative. This is not a happy development by any stretch of the imagination.

One does not imagine that the advocates of a scientific study of history—especially as a source for neutral principles to restrain the unmediated enforcement of value by judges—would be altogether cheered to hear of the “profound unity” between such an approach to history and Marxism. Yet De Koninck makes the unanswerable case that such a view of history comes from man turning away from the contemplation of things better than man toward his powers that are most properly his own. All of this, De Koninck shows, is ordered toward the Marxist emancipation of man as man, the exaltation of the unformedness of man. All of this is to say that the philosophical standing and consequences of this modern view of history are almost always overlooked.

At any rate, Schmitt argued that it was the role of the legislator, and not just any legislator, to restrain the “terror” of the unmediated, automatic enforcement of values through laws. No one, Schmitt argues, but the legislator can do this. If the legislator abdicates this supremely difficult and supremely important role, “stopgaps” might arise, “which more or less swiftly become the sacrifices of their thankless role.” By the same token, judges should be very careful, Schmitt contends, before getting into the business of making values valid. To do it thoughtlessly, without understanding what value philosophy entails, is awfully dangerous, as it opens the door to the tyranny of values and the war of all against all. At a certain point, one might think that originalism, especially in the context of the Dobbs case, heeds Schmitt’s warning. I am not so sure.

* * *

Roe v. Wade and Planned Parenthood v. Casey represent attempts by jurists to engage in the unmediated, automatic enforcement of values. The well-known quote from the plurality opinion in Casey reveals the extent to which that opinion represents the unmediated enforcement of value: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992) (joint opinion of O’Connor, Kennedy, Souter, JJ.). Self-definition is, in the account of the Casey majority, the highest value, which must be made valid through enforcement.

It is perhaps worth noting, at the risk of digressing into distraction, that De Koninck included an appendix on “personal fulfillment” to The Principle of the New Order. It is worth reading it as an answer to the Casey plurality from the Aristotelian-Thomistic tradition, not the modern war of values. For example, De Koninck observes that “[i]t is entirely consistent with humanism to see the first roots, the fundamental reason, for the social character of man not in the common good but in the poetic nature of the individual, in the need to express oneself and speak oneself to others under the pressure of an interior superabundance of pure self.” The terrible consequences of such a view are clear: “In short, as for myself, your reason for being is so that you might participate in my personal life.” We are, I think, compelled to agree with Alasdair MacIntyre once again about Charles de Koninck’s penetrating insight, which has been overlooked by many to our great peril.

The following thirty years have demonstrated the dangers of judges getting into value-enforcement. Instead of settling the matter of abortion through a “legally principled decision[] under circumstances in which [its] principled character is sufficiently plausible to be accepted by the Nation,” Casey, 505 U.S. at 866 (joint opinion), the Supreme Court became the forum for each sides of the abortion debate to attempt to enforce their values on the other, which necessarily entailed a majority of the Court enforcing its values on the whole country. And, as Schmitt warned, for the highest value, the highest price is not too high. No one can say that the unity and order of the United States has been improved by the Casey decision.

Seen in this light, we are forced to agree with Schmitt. When judges make values valid without a clear understanding of the philosophy of value, the consequences are frightening. The plurality’s vision of the highest value has been contested and revalued and nullified since 1992. We have had thirty years of national debate without any clear resolution and with increasing fervor on both sides. Into this situation, the originalists offer, through Dobbs, a way out for the Court. Overrule Roe and Casey and hold that the Constitution is silent on abortion. It is, therefore, a matter for the states. The Court can live up to Robert Bork’s vision—a neutral principle can restrain the immediate enforcement of value and restore the Court’s legitimacy.

However, Schmitt would say that only a legislator, and no ordinary legislator, can rectify this situation. Perhaps the Court, in an act of extraordinary jurisprudence, will adopt the personhood argument set forth by John Finnis, Robert P. George, and Josh Craddock (among others), and hold that the Fourteenth Amendment represents that legislative act. Maybe few would buy this originalist argument and instead take it as an act of legislation. But in the confused little-c constitution of 2021, there is no obvious reason why the Supreme Court could not step into the role of a Solon and hand down a law intended once and for all to restrain the enforcement of value. But this seems unlikely. Most originalists do not agree with Finnis, George, and Craddock and prefer the idea that the Constitution is silent on this point. Therefore, the states are left to work it out for themselves.

And this is the problem. We see already that this measure, which is a stopgap measure, will fail as Schmitt tells us that all stopgaps must fail. Already we hear that Gavin Newsom, governor of California, and other leading politicians in that state intend to make California an abortion “sanctuary” if the Supreme Court overturns Roe and Casey. This means in concrete terms that California will invite women who live in states where abortion is banned to come to California for the sake of having an abortion, using some of its $31 billion budget surplus to subsidize procedures, travel, and lodging to ensure access to abortion for those women. This too is the immediate enforcement of value, and not merely in the territorial confines of California.

And so on and so forth. Other states, inspired by California, may adopt similar proposals, even if they are not sitting on such reserves of cash. After all, the highest price is not too high a price to pay for the highest value. No doubt states on the right will come up with competing public policy proposals to try to make abortion less attractive for their citizens. Ryan T. Anderson, president of the influential Ethics and Public Policy Center, has said as much. There is no reason why they could not try to enforce these values on California through some mechanism. Already the familiar pair emerges: value/non-value. The inevitable consequences cannot be far behind.

The attempt to escape the tyranny of values through the ostensibly neutral principles of originalism is doomed to fail. It is in fact not really even an attempt, so much as a change of standpoint. The process of valuing and devaluing and revaluing continues. The values must be made valid and so they will be in fifty statehouses and fifty state supreme courts, to say nothing of the attempts to resurrect Roe and Casey through federal legislation. The terror of the unmediated enforcement of values will stalk on.

Alasdair MacIntyre goes to the Laval School

It is an annual ritual for Alasdair MacIntyre to give a talk at the fall conference hosted by the Center for Ethics and Culture at the University of Notre Dame. This year was no different. The theme of the conference was “human dignity in a secular age.” Despite MacIntyre’s advanced age and the ongoing situation with COVID-19, MacIntyre gave his yearly talk on Friday, November 12. The talk, held in the ballroom at Notre Dame’s Morris Inn, was standing room only. For those who were not in South Bend—or who were driven from the ballroom by the crowd and the stifling heat—the talk was live-streamed and can be viewed at your leisure under circumstances more comfortable than those available at the Morris Inn.

And you should view it. The early reviews have been nothing less than glowing. At The Postliberal Order, a new and exciting Substack run by Patrick Deneen, Gladden Pappin, Chad Pecknold, and Adrian Vermeule, Deneen has an excellent summary of the talk. For Deneen, MacIntyre rejected “dignity,” the comfortable concept that liberalism usually resorts to in its justifications for any number of fundamentally liberal ideas, and instead held up the “more demanding standard of Thomistic justice.” Deneen observed that MacIntyre “laid bare the contradiction involved in defending human dignity while neglecting the political, economic, and social conditions that make possible human flourishing.”

At Ius & Iustitium, to which I contribute regularly, Rafael de Arizaga notes that MacIntyre’s talk is a turn toward jurisprudence. He argues that, if, as MacIntyre argues, we are to turn away from liberalism’s emphasis on dignity, which is often as not a content-free term that is little more than a justification for liberalism, toward what Deneen characterized as the “more demanding standard of Thomistic justice,” then we need a science of justice. Jurisprudence is that science. (Cf. Isidore, Etym. 5.3.1.)

I might disagree, however, with Arizaga’s sharp distinction between moral philosophy and jurisprudence. Aquinas tells us that habit and power is the intrinsic principle of human acts and law and grace are the extrinsic principles of good human acts (ST I-II q.49 prol.; q.90 prol.). But this is perhaps a narrow argument for specialists. Certainly Arizaga is right that, if our relations with one another—especially our social, which is to say, political, relations with one another—are to be governed not by (mostly content-free) ideas like dignity but by justice, then we certainly need to know what justice is and what it requires.

In his introduction to MacIntyre’s talk, Professor David Solomon likened MacIntyre to a junkyard dog. Perhaps, given MacIntyre’s age, it might be kinder to say that he is an old master, still capable of provoking his audience after all these years, with insights drawn from a long and serious consideration of these questions. One imagines that MacIntyre did provoke his audience, made up as it was of some of the most prominent conservative liberal voices in the country. Indeed, I had the sense while I was at the conference that this year’s Center for Ethics and Culture conference was a retrenchment of the conservative liberal voice. There were some very notable absences from the program, I thought. MacIntyre’s provocation, therefore, was welcome indeed.

* * *

What struck me most was MacIntyre’s reliance on Charles de Koninck’s The Primacy of the Common Good Against the Personalists to make his argument. Longtime readers of Semiduplex—and who isn’t a longtime reader of Semiduplex, honestly—will be familiar with De Koninck’s seminal work. Indeed, anyone who has followed the integralism argument over the past five years will have heard of De Koninck and his little book about the common good. MacIntyre asked the audience at Notre Dame how many of them had heard of De Koninck. About half. A friend, a longtime veteran of MacIntyre talks, noted that MacIntyre does such audience participation for authors like De Koninck and Albert Murray.

MacIntyre’s argument follows, for the most part, De Koninck’s first objection and response in Primacy of the Common Good. There, De Koninck, following St. Thomas, argues that rational creatures are invested with dignity on account of their end, which is to know and love God, the ultimate end of the universe. This has consequences. The most important of which is that man can lose his dignity just as he can lose the attainment of his end. A rational creature keeps his dignity only as long as he remains in the order of the whole and acts according to the order of the whole. To achieve his dignity, man must order his private good to the common good.

This is an extraordinary argument. For De Koninck, dignity is not some inviolable condition that can be invoked against the common good, against order, but it arises from the common good and from submitting to order. Indeed, at the very end of his argument, De Koninck takes the objection head on: a man may be ordered to God, one might say, but he may not be ordered to any subordinate good. His dignity is inviolable with respect to these subordinate goods, and the rational creature can choose among them. De Koninck rejects this, too, arguing that if a superior remains in the order prescribed, then the inferior must submit to the superior, too. (De Koninck draws out another very startling conclusion from this, but I won’t spoil everything.)

In his influential manual, Thomistic Philosophy, Henri Grenier, another Laval School Thomist, describes personalism as the idea that man considered as a person has a dignity such that his end in the natural order is not subordinate to the end of civil society. (Considered as an individual, man is part of civil society and related to it as a part to the whole.) Grenier describes several issues with this view, of which I will mention two. First, the end of civil society, temporal happiness, is the greatest of all natural goods. Second, subordinating the common good to the private good of an individual is individualism.

Grenier observes that there is nothing inconsistent with subordinating an individual’s good to the end of civil society—temporal felicity. De Koninck, however, takes this farther and attacks the very core of the personalist argument. The dignity that they use to dissolve the person’s subordination to the common good, De Koninck argues, comes precisely from the rational creature’s subordination to that common good (and any subordinate goods superior to his own that are themselves subordinated to the common good). One loses this dignity as soon as one attempts to assert it against order.

A word should be said, too, about the distinction between objective and subjective right that Grenier outlines elsewhere in Thomistic Philosophy, which seems to have some bearing on this argument. Right is the object of justice, but it may be taken in one of two ways: objective right and subjective right. Subjective right—that is to say, right as inviolable power of doing something—taken as right in the strict sense, as most moderns do, leads the juridical order to being ordered to liberty, not the common good. However, if objective right—that is, that which is due to another—is taken as right in the strict sense and the foundation, therefore, of subjective right, the whole juridical order is ordered to the common good. There is, therefore, a connection, it seems to me, between the disordered concept of dignity of the personalists and the modern error that defines subjective right as right in the strict sense.

MacIntyre’s emphasis on the Thomistic account of justice in opposition to the modern concept of dignity is, therefore, a call to reject subjective right as right strictu sensu and return to the concept of objective right. The idea of rights as inviolable powers is corrosive to the common good, as Grenier demonstrates. One might say that the liberal claim is to assert that dignity serves as the title for an inviolable subjective right, which may be set against the common good. Objective right, with its focus on what one is owed from another or owes to another, resists this claim.

* * *

One can see why liberals are so fond of dignity as a concept, particularly in the personalist formulation that, as MacIntyre notes, was so popular after the Second World War. Claims of human dignity in the personalist conception dissolve man’s subordination to the common good. This is precisely what liberals want, especially in economics, but, as we have seen in recent years, scarcely less in other dimensions. De Koninck argues that this is not dignity. It is the loss of dignity. The society of frustrated tyrants this results in is, in fact, bestial.

MacIntyre’s invocation of De Koninck’s argument represents, as Patrick Deneen argued, a serious challenge to conservative liberals. To the extent that they rely on dignity to do basically what the personalists did, to set the good of the individual man above the common good of civil society, De Koninck demonstrates that their arguments in fact strip man of his dignity. It is only subordinated to the common good that man achieves his dignity. This is why it is essential to adopt instead claims about justice and duty.

One hopes that MacIntyre’s speech encourages at least some of those who were there at Notre Dame or watched it on the internet to go and read Charles de Koninck’s Primacy of the Common Good. While the integralism debates of the last five or six years are scarcely intelligible without De Koninck, the average conservative liberal may or may not have much interest in those debates. However, MacIntyre’s hearty endorsement of De Koninck may well spark such an interest.

Further thoughts on the tyranny of values

Note: Updated to reflect the actual name of the author of the piece, with apologies for the error.


In a recent review of some of Leo Strauss’s books at The Public Discourse, Matthew Franck summarizes an argument from Strauss’s Natural Right and History. He tells us that Strauss explained how “[t]he ideas that the truth about the human condition is radically contingent on history (historicism) and that we can speak rationally only about facts and not at all about ‘values’ or moral principles (positivism) lead inexorably to a failure of all conviction, and ultimately to nihilism, which in turn eventuates (in Strauss’s memorable words) in ‘fanatical obscurantism.’” Franck goes on to draw this thread out of later works by Strauss and James W. Ceaser. The historicism and positivism of the academic discipline of political science, he tells us, leads to irrationality and cynicism about political life.

Franck makes this argument in the context of a critique of cancel culture on university campuses. Because political science—and many other disciplines besides—is in the grips of historicism and positivism, political scientists are incapable of talking rationally about one’s preferences. This results in a fanaticism that, he says, finds expression primarily in the illiberal actions he details. Invitations rescinded, professors hounded, careers ended. Professors, he argues, ought to be resisting the radicalism of their students, offering a moderating influence.

I am not an astute observer of professional political science and the debates that are internal to the profession. However, it is impossible to be unaware of cancel culture, even if figures in regime media would deny its existence. And certainly there is something very real about the “fanatical obscurantism” that routinely tries to enforce a particular mode of thought wherever it goes, whether that’s college campuses or large corporations or school boards. One would be hard pressed to call it rational, too. And certainly one suspects that the academic classes are in some significant part responsible for the emergence of a new Jacobin class.

However, I was struck by the observation that values are opposed to positivism, with the implication that if we could return to talking rationally about values we could escape the crisis. Carl Schmitt, following Max Weber and others, explains how that is almost exactly wrong in The Tyranny of Values. (The pamphlet started as a lecture Schmitt delivered in 1959 at a conference in Ebrach, West Germany. He published it privately in 1960, and then again, in a Festschrift, with a lengthy introduction, in 1967.) In The Tyranny of Values, Schmitt demonstrated precisely that values are a “positivistic ersatz for the metaphysical.” In this, he follows Martin Heidegger. To be sure, in this account, values are opposed to the value-free scientific positivism that Franck seems to have in mind. But, Schmitt tells us, even if values are set in opposition to scientific positivism, they do not provide an escape hatch from irrational fanaticism. They do the opposite, in fact. They plunge individuals into the same abyss of nihilism.

* * *

I have written here and elsewhere on other occasions about The Tyranny of Values. It has gotten some attention, too, in publications such as American Affairs. There, Blake Smith argues that The Tyranny of Values is Schmitt’s final reckoning with Leo Strauss’s critique of The Concept of the Political. The Tyranny of Values is one of the essential texts for the present age. The upshot of Political Theology, an extended meditation on a remark by Donoso Cortés, is obvious to anyone with eyes: political concepts are secularized theological concepts. And they are becoming less and less secularized. Likewise, the friend-enemy distinction discussed in The Concept of the Political plays itself out on small states and large stages alike on an almost hourly basis. Yet in comparison to these texts, The Tyranny of Values, no less powerful in its insight, is relatively obscure.

The positivism of values in Schmitt’s account is, perhaps, where the trouble really begins. Perhaps that is not the most precise way of putting it. Values were a response, and it was by and large a 19th century response, to “causal-legal and, therefore, value-free science” that threatened, according to Schmitt, human freedom and responsibility. How then to maintain that human freedom and responsibility? Schmitt turns from Martin Heidegger to Max Weber here. The perfectly free individual sets values with his decisions about those values. This certainly maintains the free and responsible human being in the face of inexorable causality. But this pure subjectivity leads to the crisis that preoccupies Schmitt for the remainder of the essay, however.

The crisis becomes manifest in the consequences Schmitt draws out of the concept of values. One startling one is that values are only place-values in a value system, assessed from a given standpoint. Even the highest value—Schmitt here uses God as an example, but one can imagine many others—is still a value and has only the value that the system gives it. What matters for the logic of values on Schmitt’s account is that the value is a value first and foremost and only secondarily the highest value. But once something becomes a value and indeed a place-value it is subject to revaluation and readjustment from different standpoints, at different points of attack.

Value logic is an inherently aggressive thing. This is the second important consequence of a philosophy of values. Schmitt begins The Tyranny of Values by observing that “value is not, rather it holds.” Now we know also that a value “only ever hold[s] for something or for someone.” I am lying—to you, to myself, to anyone—if I say that I hold a given value without making it valid, without imposing it on someone or something. More than this, when I set a value, I necessarily devalue, raise in value, declare nonvalues, and valuize. “The compulsion to validity of value is irresistible, and the strife of those who value, de-value, raise in value, and valuize, is unavoidable.” Value logic is, therefore, the “eternal battle of values and of worldviews, a war of all against all . . . .” Values must always and everywhere be made valid, they must be imposed—on someone or on something. Each individual, in perfect freedom and subjectivity, sets values and imposes them.

We have not, with a turn to values and the inevitable war of all against all that the turn entails, escaped scientific nihilism. Schmitt notes that even assertions of objectivity of values do nothing but stoke the conflict. Indeed, Schmitt argues that the promise of tolerance, of subjectivity, of neutrality made by value philosophy converts, immediately, with the flip of a switch, into enmity, and all the vertiginous horror that enmity implies, as soon as the question of making values valid is raised concretely. And it is always raised concretely. The nihilism opposed to human freedom and responsibility emerges where we least expected it—indeed, in the fortress we built against its invasion.

Unsurprisingly Schmitt finds little hope in all this. That is, the philosophy of value was brought to bear as a defense against a scientific positivism, but it is unlikely to achieve that goal. In the 1967 introduction, Schmitt wryly remarks that the “theologians, philosophers, and jurists” who had seen in values “the salvation of their existence as theologians, philosophers, and jurists, namely salvation from an irresistible advancing natural scientificity” would be disappointed. The transformation of the bases of these disciplines, Schmitt holds, into values merely hastens what he calls the general neutralization.

The power of Schmitt’s insight in The Tyranny of Values is precisely his explanation of value logic and his clear-eyed view of the consequences. In the introduction, Schmitt explains that philosophy of values was attractive to jurists, especially in the postwar era, because it was modern and scientific, especially in comparison to the Thomistic and neo-Thomistic natural law jurisprudence that Schmitt identifies as its explicit competitor. Yet it was a “calamitous error” to assume that “goods and interests, goals and ideals” could be saved from “value-free natural scientificity.” Schmitt tells us that “values and value theories are not capable of founding any legitimacy; they can only ever valuize.”

* * *

Values, therefore, are not really the way out of the nihilistic campus conflicts Franck identifies. For one thing, value theories “can only ever valuize” and once something becomes a value, the logic of values takes over. That is to say that the “fanatical obscurantism” that Franck decries is perfectly at home in a system of values. Indeed, it is already at the point of attack, devaluing and revaluing even the highest values. It is already prepared to make its values valid, to impose those values on someone. Schmitt tells us that values open onto the appalling vista of a war of all against all. The question is whether anyone is capable of restraining the unmediated enforcement of values.

One might even ask whether what is happening on college campuses and in large corporations (and in a thousand other places) is not already taking place in a system of values. Every standpoint has a highest value and therefore a highest non-value, and every point of attack strips away the pretended neutrality and relativism of a system of values. The “fanatical obscurantism” might be perfectly at home in a system of values precisely because it is already taking place in a system of values. Insisting on another ranking of values is simply following the logic of values in another direction; it is not, however, escaping that logic. The war of all against all grinds on. Another year, another offensive, everyone stuck in the same stinking trenches.

Perhaps there is another solution, though, which Schmitt hinted at when he identified the Thomistic and neo-Thomistic natural law jurisprudence as the primary competitor to a value jurisprudence. If values are, as Heidegger and Schmitt have it, a positivistic ersatz for the metaphysical, surely a return to Thomism and the natural law (rightly understood) would break out of the crisis. Schmitt tells us, in a roundabout way, that the actions of the Thomistic account are altogether separate from value theory: “[v]irtues one exercises; norms one applies; commands are fulfilled; but values are set down and imposed.” Thomism and the natural law, therefore, break out of the trap set by value philosophy.

The Quartodeciman Controversy

One reads St. John Henry Newman’s writings or the writings of Fr. Adrian Fortescue and one finds profound knowledge of and interest in the history of the Church, especially the Apostolic and Patristic periods. And this knowledge was not merely quaint antiquarian diversion, the way someone might know about small-gauge railroads in a given county at the turn of the century. These figures brought Church history to bear on questions of doctrine and practice that were live controversies in their days. Of course, their historical works are hugely entertaining and erudite as literary monuments, too.

By contrast—and let me say at the outset that I am as guilty of it as the next fellow—today we seem not to have the same interest in the history of the Church or the precedents of the Apostolic or Patristic eras. To be sure, their theology is often referred to. But one hardly sees discussions of Eusebius’s Ecclesiastical History with the same frequency one sees discussions of Augustine’s Confessions or City of God. This is too bad. In a 2007 general audience, Pope Benedict XVI praised Eusebius’s history as a source of “fundamental importance.” Benedict went on to make a startling statement, considering the lack of interest one sees in Eusebius, even among educated Christians:

Thus, Eusebius strongly challenges believers of all times on their approach to the events of history and of the Church in particular. He also challenges us: what is our attitude with regard to the Church’s experiences? Is it the attitude of those who are interested in it merely out of curiosity, or even in search of something sensational or shocking at all costs? Or is it an attitude full of love and open to the mystery of those who know – through faith – that they can trace in the history of the Church those signs of God’s love and the great works of salvation wrought by him?

Given the weight that a theologian and churchman like Benedict gave to the Ecclesiastical History, one feels compelled to crack open the dusty old Loeb (or Penguin) and cast around for scenes of interest. One such scene comes at the very end of Book 5 (5.23-5.25), where Eusebius recounts the Quartodeciman Controversy. One of the reasons why Benedict considered the Ecclesiastical History of such importance is because Eusebius preserved primary sources in his history for which he is the sole source. A particularly good example of this is found in his treatment of the Quartodeciman Controversy.

The dioceses of Asia held that Easter should be celebrated on the 14th of Nisan, following the definition of Passover and the preparation for Passover given in Leviticus 23. Naturally this may or may not be a Sunday, but regardless of whether or not it was a Sunday, that’s when the Lenten fast ended and Easter began. The opinion elsewhere was that one should not end the fast except on a Sunday—the day of the Lord’s Resurrection. The latter opinion, Eusebius tells us, was universal and was handed down by the Apostles themselves.

This matter became a live controversy toward the end of the Second Century. Synods were held in Rome, Palestine, Pontus, Gaul, and Osrhoene. Pope St. Victor presided over the Roman synod and St. Irenaeus presided over the synod in Gaul. (This will be relevant in a little while.) All of these councils reached the unanimous conclusion based upon the apostolic tradition: Easter is celebrated and the fast ends on a Sunday, not the 14th of Nisan.

The Quartodeciman bishops were, needless to say, unhappy that the judgment of Christendom had gone against them. Bishop Polycrates of Ephesus wrote to Victor, arguing in favor of their tradition. Eusebius quotes his letter at some length. In sum, he argues that the churches of Asia are decorated by saints asleep in the Lord, like St. John and St. Polycarp, all of whom maintained that Easter began on the 14th of Nisan, regardless of the day. Polycrates’s letter concluded in a manner perhaps not unfamiliar even today: he was not scared of threats and it is better to obey God rather than men.

Pope Victor was not altogether amused by Polycrates’s response, nor, insofar as we can tell, was he impressed by Polycrates’s stand on principle. He either excommunicated all the churches of Asia or threatened to do so on the ground of heterodoxy. Fortescue suggests that either he never actually published his decree excommunicating all the Christians in Asia or he withdrew the decree very quickly. We’ll come to that in a moment. What matters is that Victor’s initial reaction to Polycrates’s stand on tradition was to excommunicate not merely Polycrates but all the Christians in Asia.

Word got around. One doubts that this is something that happened all that often in those days. And other bishops offered Victor their views on the matter. By and large they did not think Victor was doing the right thing. Indeed, Eusebius says that they thought Victor ought not to do what he had in mind. In fact, the bishops asked Victor to turn his mind toward peace and unity and love, suggesting that they thought his plan to excommunicate the churches of Asia was contrary to peace and unity and love. Among the bishops who suggested that Victor had perhaps gone a little too far was St. Irenaeus.

Irenaeus was in a unique position in the controversy. Born in Smyrna to a Christian family, Irenaeus grew up around Polycarp, who had been cited by Polycrates as an authority in support of the Quartodecimans. And of course Polycarp himself was a disciple of St. John. By the time of the controversy, Irenaeus was bishop of Lyon in Gaul. However, one would be surprised if he did not have some insight into the Asian practice and the controversy. For his part, he reached the conclusion that Easter had to be celebrated on a Sunday notwithstanding the timing of Passover given in Leviticus.

Nevertheless, Irenaeus wrote Victor, urging him not to excommunicate all Asia. Irenaeus’s claim was that Victor ought not to excommunicate all these Christians merely for following their fathers’ tradition, which was, after all, itself unbroken. He observed that the dating was not the sole controversy, the fast was part of it. And there was much variation about the fast. But even if dating were the sole controversy, there was still insufficient ground to excommunicate them. Victor’s predecessors Anicetus, Pius, Hyginus, Telesphorus, and Xystus had all rejected the Quartodeciman position and kept the Roman Church free from error. But they had lived in peace with the Quartodecimans. Indeed, it was never suggested that this difference in calculation was a matter of heterodoxy rising to the level of severing communion.

Irenaeus made a particularly interesting point about the fast. It is worth dwelling on for a moment. Some kept the fast for a day, some for two days, others for forty hours. It appears—from Irenaeus and Tertullian—that the Lenten fast observed in those days was not universally the forty-day fast we know today. Within a couple of hundred years, the Lenten fast we know had emerged. At any rate, Irenaeus claimed that the variation in how the fast was kept demonstrated the unity of the Church, because all the people who kept the fast in various ways lived in peace with one another. In other words, diversity in practice among people who are at peace with one another is testimony to the essential unanimity of the faith.

Turning back to the date question, Irenaeus was particularly interested in Pope Anicetus’s conduct, which had a significant bearing on this question. Polycarp came to Rome during Anicetus’s reign. The matter of the dating of Easter came up. Anicetus and Polycarp simply could not agree on it. Anicetus could not get Polycarp to budge an inch: Polycarp stood on the tradition he received from St. John and other apostles. Polycarp could not get Anicetus to budge an inch, either: Anicetus had received a tradition from his fathers in the faith just like Polycarp did. However, this dispute did not result in a breach of communion between Anicetus and Polycarp, much less the sort of excommunication Victor had in mind. In fact, Anicetus made way for Polycarp to celebrate the Eucharist according to his tradition.

Victor seems to have changed his mind: either he never issued the excommunication he threatened or he withdrew it at once. And as is the case of so many heresies in the history of the Church, the Quartodeciman position died out. Two bishops, Narcissus of Jerusalem and Theophilus of Caesarea, prepared a brief for the apostolic tradition of celebrating Easter on a Sunday and observed that the Church of Alexandria had maintained the same practice, with an exchange of letters annually to ensure that everyone kept the same date. In the way of this, Eusebius tells us, the Quartodecimans were rebutted and unanimity achieved.

The Quartodeciman Controversy is an interesting moment in the life of the Church. Two practices existed side by side for a period of time. Suddenly, it becomes a doctrinal controversy. Eusebius does not quite explain what set off the explosion. Something had to, but it is not clear what it was. The various churches held councils and arrived at an opinion founded upon the teaching of the Apostles. Except for some holdouts. The holdouts informed Pope Victor that they stood on the tradition of the Apostles and saints and martyrs of Asia and were ultimately responsible to God, threats or no threats.

Pope Victor responded by declaring the practice of the Quartodecimans heterodox and threatening to excommunicate all the Christians of Asia. A drastic measure, to say the least. Such a peremptory action even today would be a sweeping exercise of papal jurisdiction. It’s rare enough for the pope to excommunicate anyone, much less everyone in a province, even on grounds much more certain than the grounds offered by the Quartodecimans. Victor’s brothers in the episcopate urged him to reconsider, to abandon the course of excommunication in favor of other means of preserving the unity and peace of the Church. Irenaeus in particular wrote him about the practice of the Church of Rome, which had been to tolerate the diversity in this discipline, even as it held, from apostolic origin, another discipline, in which the other churches of the world concurred. And in the end Victor reconsidered his approach.

There is perhaps a lesson here. Indeed, there must be. Benedict, in his 2007 address of Eusebius says, “Historical analysis is never an end in itself; it is not made solely with a view to knowing the past; rather, it focuses decisively on conversion and on an authentic witness of Christian life on the part of the faithful. It is a guide for us, too.” The Quartodeciman Controversy as presented by Eusebius is not merely an interesting historical highlight, made notable because the players in it are important for other reasons. His analysis of the situation serves therefore as a guide for us and ought to be approached as such.

One lesson is a lesson, as I said, that one finds written in the histories of many heresies that have afflicted the Church. Patient argument and the passage of time often resolve controversies more effectively than peremptory action. Narcissus and Theophilus analyzed the question relying on the apostolic traditions of their churches and came up with the case for the practice approved by the councils of the other churches, including Rome. Victor’s excommunication of Asia was ultimately not necessary. Once Narcissus and Theophilus had made their case, the Quartodecimans’ days were numbered. And today no one is a Quartodeciman.

Of course, the Quartodeciman Controversy has featured in various polemics between the protestants and the Church of Rome. In his splendid little book The Early Papacy, Fr. Adrian Fortescue makes some observations about this affair. Notably, no one suggests that Victor had not jurisdiction over the Quartodecimans. Second, Irenaeus does not say that Victor had not the power to excommunicate the Quartodecimans. Fortescue notes that Irenaeus (and the other bishops who wrote to Victor) merely holds that Victor should not excommunicate the Quartodecimans.

The question of the pope’s jurisdiction had been settled much earlier, when Pope St. Clement wrote to the Corinthians and commanded them to submit once again to their bishops. No one suggested then that Clement, who, as Fortescue drolly observes, was early enough that his name appears in the New Testament, had not the authority to command the Corinthians to do or not to do something. And no one, least of all Irenaeus, suggested that Victor had not the authority to declare the Quartodeciman opinion wrong. Irenaeus in fact thought it was wrong.

Nevertheless Irenaeus took Polycrates’s point and urged Victor to do likewise. The churches of Asia stood on a tradition no less venerable than the tradition of Rome. Victor’s predecessors, most notably Anicetus, had disagreed with the tradition, but had maintained peace with Polycarp, who held the position firmly and claimed to have received it from St. John himself. Ultimately the Quartodecimans were defeated not by a peremptory excommunication of the Christians of Asia but by the careful argument of Narcissus and Theophilus (and some others).

Fortescue points out that Irenaeus’s point is merely that Victor had better not excommunicate the Quartodecimans. It was not how this matter had been handled by his predecessors, who had, in fact, had occasion to consider it. However, Fortescue does not dwell on Irenaeus’s point about diversity in practice revealing unity in faith. Pope Victor was not wrong about the merits of the case nor was he acting ultra vires. Irenaeus simply pointed out that he was looking at it wrong. It was not a sign of heterodoxy for the churches of Asia to follow the practice of their fathers, a practice that stretched back through Polycarp to St. John. That Anicetus and Polycarp could be at peace was instead a testimony to the unity of the faith.

One finds in a few short chapters of one book of Eusebius’s Ecclesiastical History matter for much thought. Indeed, the passage throws some light on many modern controversies. How ought the pope to exercise his unquestionable jurisdiction? How ought one to relate to the pope when one thinks he’s making a mistake? What is the connection between doctrine and practice? Is there room in the Church for more than one practice? Obviously the answers these questions require more than one source, but, as Benedict says, Eusebius’s history is a source (and contains itself sources) of fundamental importance to begin to answer those questions.

A notable new book: Sohrab Ahmari’s “The Unbroken Thread”

I was delighted to receive a copy of Sohrab Ahmari’s new book, The Unbroken Thread. I begin with a confession: I knew people liked his conversion memoir, From Fire, By Water, but I did not read it. I am not a convert or a potential convert to the Faith and, to my great shame, have not cultivated much of an interest in proselytizing or evangelizing or whatever the correct term is these days. Luckily I avoided any social settings where I would be expected to know conversion literature generally or Ahmari’s book specifically, so I was spared the consequences for ignoring the book. One of the benefits, I suppose, of living in southern Indiana.

The Unbroken Thread, however, was immediately more compelling for me, not merely because I got a copy in the mail. It is in short Ahmari’s brief for tradition against the modern age. As a Catholic and occasional participant in debates over Catholic political and legal thought, this is a topic about which I am indeed interested. Everyone is interested in tradition these days, either for or against. One has only to check a trusted (or not) source of news to see that tradition is one of the burning topics of the age.

Ahmari tells us that The Unbroken Thread began its life as an idea to do a book of reporting about traditionalism among the young. This is a popular subject. Matthew Schmitz and Tara Isabella Burton, to take two examples, have drawn a lot of water from the well of upwardly mobile young people who like the traditional Latin Mass or anarchocommunists who own copies of the Little Office of the Blessed Virgin Mary. Ahmari’s agent kiboshed the idea, suggesting that Ahmari really wanted to write the case for traditionalism, which is precisely what Ahmari has done. Thank goodness for Ahmari’s agent. A book about Ivy Leaguers in New York City who own well-thumbed copies of the Liber Usualis or the Antiphonale Monasticum and Das Kapital would have been too much to bear.

And, really, Ahmari has written a much more interesting book than the one he initially wanted to write. He begins by reproaching his youthful exaltation in self-definition and remaking himself. He has found in the west today the same obsession with autonomy and reinvention. With this, Ahmari has gone straight to the heart of the problem with modernity. The French-Canadian theologian Charles de Koninck explained it in his Principle of the New Order. The project of the so-called enlightenment has been to reject the primacy of the speculative and exalt in man’s practical reason. Man turns away from what is best in himself—indeed what may be called superhuman (cf. Metaphysics A, ch. 2; Nicomachean Ethics 10.7)—and finds emancipation through the organs of practical reason: his hands and his tongue.

De Koninck notes that the exaltation of practical reason results in saying and writing things one cannot think. So long as one follows the rules of grammar, one can write or say anything, even if it is deeply irrational. He finds a connected phenomenon: the disconnection of history from prudence. Historical events can be judged “objectively,” in the light of “cold facts,” without the historian needing to make right judgments about human behavior. In this particularly pointed passage, De Koninck notes that this phenomenon allows “the adulterous man to cry out on the public place: this woman was taken in adultery!”

Of course, all this is nonsense. Our Lord tells us, as De Koninck reminds us, that we shall be accountable for all our idle words on the day of judgment (Matt. 12:36). We must, we are told, take the beam out of our eye before we can hunt specks in our brother’s eye (Luke 6:42). Ahmari understands, like De Koninck, that the project is nonsense. It has promised freedom and endless self-invention, but a quick look at cable news or social media suggests that no one feels particularly free. We have made man the measure of all things only to find that humanity is concept harder and harder to comprehend. Ahmari is right to be dissatisfied. Instead, Ahmari finds in the sacrifice of St. Maximilian Kolbe, the Franciscan friar who established a monastery in Nagasaki and died in Auschwitz, true freedom and true humanity.

It is against this backdrop—and Ahmari’s understandable anxiety for his young son, Maximilian—that Ahmari sets out to find in tradition the answer to the failed promise of the so-called enlightenment. In tradition, he argues, one finds true freedom and true happiness, as opposed to the shabby substitutes on offer today. To make the case, Ahmari structures his book around twelve questions, such as “Is God Reasonable?” and “How Must You Serve Your Parents?” and “What’s Good About Death?” Each chapter takes a look at the question through the lens of a thinker in the traditions of the world, setting them in their historical context. Ahmari deftly blends history, biography, and philosophy to propose answers to the questions he sets himself. I am reminded of Clive James’s excellent Cultural Amnesia. Both men make serious points about tradition and our culture without becoming pedantic or leaden. In and of itself, this is an accomplishment.

Ahmari is the opinion editor of the New York Post and a regular contributor to First Things among other publications. But The Unbroken Thread suggests that he has a real talent for biography and popular intellectual history. In an age of monumental biographies like Julian Jackson’s De Gaulle, Stephen Kotkin’s Stalin, or John Röhl’s Wilhelm II, there is much to be said for Ahmari’s sketches. Not everything needs to be a spiritual heir to Henri-Louis de la Grange’s Gustav Mahler or Robert Caro’s Lyndon Johnson. It is altogether possible to give a sense of a man and his thought—and his influence on the most important questions of the age—in less than five thousand pages and a forest of footnotes and endnotes and bibliographies. (Though Ahmari does cite his sources.)

It is worth noting as well that Ahmari does not limit himself to any one tradition. The rabbi Abraham Joshua Heschel, born in Czarist Poland and working in the United States, sits alongside Seneca, the Stoic philosopher who was Nero’s favorite—for a time. Certainly some of his choices recommend themselves by the sheer extent and force of their influence: St. Augustine, St. Thomas Aquinas, and Confucius. But he also draws upon figures who probably are not household names, like the theologian and civil rights leader Howard Thurman and the philosopher Hans Jonas. And he looks across the political spectrum. One does not necessarily expect to see Andrea Dworkin marshaled in a case for traditionalism, but here she is.

This is important, not least in the context of ongoing political debates in the United States and elsewhere. Tradition, Ahmari reminds us, is not the sole property of the west or of Christians or of the right. There are valuable insights in other traditions. One runs a risk, of course, of turning this into the liberal arts ideology. That is, by exploring all these traditions, you get a set of intellectual skills that allows you to solve modern, meaningful problems. That is to say, these traditions serve mostly to produce a neutral technology that has market value. I do not think Ahmari falls into that trap, since he emphasizes the ultimate ends toward which man is ordered. But I think The Unbroken Thread would have benefitted from a direct response to the liberal arts ideology.

The breadth of Ahmari’s book will appeal first and foremost to a general audience—by design, I imagine. However, aspects of the book cannot help but touch upon narrower debates. For example, Ahmari’s chapter “Does God Need Politics?” goes to the very heart of the ongoing debate in the Catholic (and more broadly Christian) right about the common good. Ahmari is himself in some large part responsible for sparking the debate, along with the Harvard Law School professor Adrian Vermeule. In a First Things essay and a series of debates with David French in 2019, Ahmari called for a reorientation of what is broadly called the culture war.

An aside first, though. While Ahmari has certainly done much to reinvigorate a debate about the goals and means of political Catholicism, The Unbroken Thread is not really a polemic in that debate, except secondarily. While Ahmari sets for himself questions about politics, his scope is not narrowly political. A reader who wants a barn-burning political tract—a rehearsal of the arguments against David French, for example—is probably going to be a little disappointed by Ahmari. To put it another way: it is not a Twitter thread against the libertarians expanded into book form. But a book that argues that one finds happiness and freedom through tradition is going to have political dimensions.

Ahmari called for a renewed focus on the common good, even if it requires state power to establish and promote, in opposition to the broadly libertarian approach taken by French. Vermeule put the case in more concrete legal terms in an early 2020 essay in The Atlantic, calling for a common-good constitutionalism to replace the worn-out judicial philosophy of originalism. This debate has consumed Catholic political thought for the last eighteen months or so. A very recent conference arranged by Ryan T. Anderson at the University of Dallas shows that there is still a lot of energy in this debate.

One of the key issues in the debate is the question of the common good. Liberals, for whatever reason, usually begin by mystifying the concept. What is the common good? What is peace? What is happiness? Who decides? So on and so forth. They hope, I think, that by making the common good an impossibly difficult concept, they can take some of the rhetorical force out of the concept and make it as vague as the concepts they rely on, such as freedom and democracy. In “Does God Need Politics?” Ahmari offers a solution to the problems the liberals raise.

The chapter is a reading of St. Augustine’s life and De civitate Dei. Ahmari turns to Pater Edmund Waldstein, O.Cist., and his brilliant reading of Augustine several times throughout the chapter. Though, having played some small part in these debates and being familiar with Waldstein’s work on Augustine, I was less struck by that aspect on my first reading. Instead, I was struck by how vivid Ahmari’s portrait of Augustine was. Certainly everyone knows the broad strokes of Augustine’s life, especially if, as most educated people have, they have read the Confessions. But Ahmari, perhaps finding some special kinship with Augustine (though that is mere speculation), draws a remarkably engaging picture of Augustine and the circumstances under which he wrote De civitate Dei.

At any rate, Ahmari presents Augustine’s vision of Christian politics in this chapter. In Augustine’s critique of Roman politics and society, Christians find for themselves an approach to politics in accordance with reason and the divine law. This is especially true for questions like the common good or peace. Book XIX of De civitate Dei has extended treatments of these questions, which have informed the tradition of Christian political thought for fifteen hundred years. As I have insisted on several occasions here (and elsewhere) these concepts have content that we are not altogether free to provide. When we talk about peace, for example, we are not totally free to redefine it for ourselves: we follow, for example, Augustine’s treatment of peace and those who have followed Augustine.

Ahmari does not provide a definitive, scholarly study on this question—or any of the questions he discusses—and I do not have the sense he is especially interested in doing so. Neither, of course, did Clive James in Cultural Amnesia. What he does do, especially if one is not familiar with the figures he discusses, is urge one to seek the figures out for oneself. Someone who might be familiar with the debate over the common good from Twitter or the various web and print articles at various outlets but who might not have read De civitate Dei may well be inspired to seek out a copy and read Augustine for himself. On this basis, The Unbroken Thread succeeds at its task.

A little more on law, happiness, and reason

It is no trick to review Thomas Aquinas’s famous definition of law from the Quaestio de Essentia Legis (ST I-II q.90). One can go through the various attributes of law before coming to Aquinas’s summation: “nihil est aliud quam quaedam rationis ordinatio ad bonum commune, ab eo qui curam communitatis habet, promulgata”—“it is nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated” (ST I-II q.90 a.4 co.). However, if one hastens toward that definition, one may well miss important aspects of Aquinas’s argument in support of it. In particular, one overlook what it means for a law to be an ordinance of reason.

Aquinas begins by saying that law is a rule and measure of human actions (ST I-II q.90 a.1 co.). Here he follows earlier writers like Isidore of Seville (cf. Etym. 5.10, 5.19–20). But the rule and measure of human actions is reason, the first principle of human actions (ST I-II q.90 a.1 co.). Indeed, one may say that actions are properly human only insofar as they are rational (ST I-II q.1 a.1). Aquinas tells us that “In unoquoque autem genere id quod est principium, est mensura et regula illius generis”—“Now that which is the principle in any genus, is the rule and measure of that genus” (ST I-II q.90 a.1 co.).

Here one must attend carefully to definitions (cf. In I Post. An. L.5). Henri Grenier, author of the influential manual, Thomistic Philosophy, tells us that “[a] principle is that from which a thing in any way proceeds” (Vol. 1, no. 217). Aquinas, commenting on Aristotle’s Physics, tells us that, when Aristotle talks about “principles”: “per principia videtur intelligere causas moventes et agentes, in quibus maxime attenditur ordo processus cuiusdam”—“by principle he seems to mean moving causes and agents in which, more than in others, there is found an order of some progression” (In I Phys. L.1). Elsewhere he says “Tria videntur de ratione principiorum esse: primum quod non sint ex aliis; secundum quod non sint ex alterutris; tertium quod omnia alia sint ex eis”—“Three things seem to belong to the very nature of principles. First, they are not from other things. Secondly, they are not from each other. Thirdly, all other things are from them” (In I Phys. L.10).

Aquinas goes on to tell us that “Sicut autem ratio est principium humanorum actuum, ita etiam in ipsa ratione est aliquid quod est principium respectu omnium aliorum”—“Now as reason is a principle of human acts, so in reason itself there is something which is the principle in respect of all the rest: wherefore to this principle chiefly and mainly law must needs be referred” (ST I-II q.90 a.2 co.). Aquinas shows that the first principle is the last end, which for human life is happiness (ibid.). Indeed, Aquinas, following Augustine, argues that happiness is the last end proper to man as a rational creature (ST I-II q.1 a.8 s.c. & co.; e.g., Augustine, De Trinitate lib. XIII, c.5). Aquinas demonstrates at length that perfect happiness cannot consist in wealth, honor, glory, power, or any other bodily good (ST I-II q.2 a.1–5). Neither can happiness consist of delight, even delight in the supreme good (ST I-II q.2 a.6). Happiness must be therefore a good of the soul (but not in the soul) and indeed the universal good, the object of all men’s desires—God (ST I-II q.2 a.7–8).

We understand better, therefore, Aristotle when he says that just laws are those that produce and preserve happiness for the political community (NE 5.1, 1129b19; In V Ethic. L.2). One can draw all manner of other conclusions from this. For example, “cum beatitudo consistat in consecutione ultimi finis, ea quae requiruntur ad beatitudinem sunt consideranda ex ipso ordine hominis ad finem”—“Since happiness consists in gaining the last end, those things that are required for happiness must be gathered from the way in which man is ordered to an end” (ST I-II q.4 a.3 co.). And we know that in this life only imperfect happiness, which requires all sorts of external goods, is possible (ST I-II q.4 a.7 co.).

But we do not need to get too far into those weeds. The important thing is to recognize the connections between happiness, reason, and law. More than this, as before, one must recognize that these connections are not merely accidental. Law is an ordinance of reason, which means that it is necessarily ordered to happiness. And happiness itself is not a meaningless concept, dissolved for the most part into relativism—each person defines it for him- or herself. We know what the most perfect happiness is (cf. ST I-II q.3 a.8 co.). We know, too, that “Quod autem dicitur maxime tale in aliquo genere, est causa omnium quae sunt illius generis”—“Now the maximum in any genus is the cause of all in that genus” (ST I q.2 a.3 co.). And so on and so forth.

Law and the concept of happiness

There is a tendency, especially when discussing questions of law and politics in the classical, Catholic tradition, to overlook the meaning of the terms and concepts used by Aquinas and others in their expressions of that tradition. But Aquinas reminds us: “parvus error in principio magnus est in fine”—“a little error in the beginning is a big one in the end” (De ente et essentia, Prooemium). It is therefore necessary to keep these definitions in mind. An exploration of the consequences of a couple of central concepts—happiness and the common good—will suffice for a demonstration.

We know that in practical matters the first principle is the last end (ST IaIIae q.90 a.2 co.). The last end of human life is bliss or happiness (ST IaIIae q.2 a.7 co.). Aquinas tells us that law, therefore, must regard happiness and indeed, because man is a political animal, not just the happiness of an individual man but the happiness of the community (ST IaIIae q.90 a.2 co.). Aristotle tells us much the same thing when he treats justice in the Nicomachean Ethics: a just law produces and preserves happiness for the community (NE 5.1, 1129b12-27). And this happiness is the common good (In V Ethic. L.2, nos. 902–903),

So far, there is nothing too controversial in saying that laws must be framed to produce and preserve happiness for the community, which is the common good. A problem inevitably arises when the terms are used without any understanding of their meaning. It is all too common to hear the common good—or happiness—used mostly to mystify discussions or to smuggle in specific ideas, which have very little to do with the concepts as they are used. Insistence upon clear understandings of the concepts involved leads to clear understandings of the consequences of the claims made.

Let us follow its trail for a while and see where we wind up. Happiness, which is the same thing as the common good, has a concrete meaning. If the political community—if, for example, the state—is to secure and preserve happiness, then it is necessary to understand happiness. The first principle in practical matters is the last end (ST IaIIae q.90 a.2 co.). It may be suggested that happiness consists, for example, in a particular arrangement of political and economic conditions that allow for citizens to do or not do this or that thing. Indeed, even in Catholic discourse, one might hear temporal happiness described in such terms, with the suggestion that eternal happiness is added to that in some way.

Yet this is a serious error. For one thing, when one makes political prudence or science the highest wisdom, one necessarily supposes that man is the best thing in the universe, as Aristotle tells us (NE 6.7, 1141a20). Man is however not the most excellent thing in the world (In VI Ethic. L.6, no. 1186). Another consequence, if one holds that man is the most excellent thing in the universe—and, therefore, that political science is the most excellent—would be to make actually practical rule impossible. Charles de Koninck, in his Principle of the New Order, demonstrates that practical reason directs to an end in accordance with right reason. This requires one to know the end. To reject the primacy of the speculative is to knock the legs out from underneath this process: without speculative reason one cannot know the final end—which is the first principle. Practical rule dissolves into mere will and chance.

The speculative intellect is important not merely for making practical rule possible. In the classical account, it is the proper end of law and the essence common good. Aristotle tells us that the most excellent virtue—complete happiness—is contemplative (NE 10.7, 1177a12). That is to say, for Aristotle, to contemplate what is true is the best part of man. And the contemplative life is the perfectly happy life. Aquinas explains that the contemplation of truth consists both in discovering the truth and in reflecting on truth already discovered (In X Ethic. L.10, no. 2092). However, reflecting on truth already discovered is more perfect than the investigations leading to the discovery of truth. The perfectly happy life, therefore, comes from contemplation by reason perfected by the intellectual virtue of truth.

Aristotle and Aquinas alike extol the superiority of the contemplative life. Aquinas tells us that “vita contemplativa non est proprie humana, sed superhumana”—“the contemplative life is not properly human, but superhuman” (QD de virt. card. a.1 co.). However, “vita […] voluptuosa, quae inhaeret sensibilibus bonis, non est humana, sed bestialis”—the life of pleasure […] by which one adheres to sensible goods, is not human but bestial” (ibid.). Human life is the active life according to the moral virtues (ibid.). But it must be remembered that “vita activa, in qua perficiuntur morales, est ut ostium ad contemplativam”—“the active life, which is perfected by the moral virtues, is as a door to the contemplative life” (QD de virt. in communi a.13 ad 24). In other words, the contemplative is the best part of man, toward which the active life is ordered (cf. Metaphysics A, c.2, 982b5; In I De Anima c.1). Aquinas goes so far as to hold that to take pleasure in created things, as opposed to the permanent things that offer pleasure in the contemplative life, is to incur an impurity of affection (In X Ethic. L.10, no. 2091).

However, the centrality of the contemplative life goes well beyond being superhuman and the true end of the active life, perfected by the moral virtues. Aquinas teaches us that the maximum in any genus is the cause of all in that genus (ST Ia q.2 a.3 co.). He gives the example of heat: fire, the maximum heat, is the cause of all hot things. This principle returns in an unexpected place. In the so-called treatise on law, Aquinas tells us that in every genus, that which belongs to it chiefly is the principle of the others and the other things in that genus are subordinated to that thing (ST IaIIae q.90 a.2 co.). Once again, Aquinas uses the example of heat: fire is chief among hot things is the cause of heat in mixed bodies, which may be said to be hot insofar as they have a share in fire. It may therefore be said that the happiness of the contemplative life is the cause and principle of the happiness of the active life.

Therefore, the most just laws, which secure the greatest happiness for the political community, which have the greatest share of the common good, are laws producing and preserving the contemplative life. The law must lead the citizens of the political community to virtue (ST IaIIae q.95 a.1 co.). But the highest virtue is the virtue of the contemplative life. To the extent that the law fosters and promotes the virtues of the active life, it must be remembered that the active life is as a door to the contemplative life (QD de virt. in communi a.13 ad 24). The lawgiver must therefore have first and foremost in mind the virtues of the contemplative life: in practical matters the first principle is the last end. And the lawgiver must have in mind the fact the happiness of the contemplative life is the cause and principle of the happiness of the active life, even if the happiness of the active life involves some impurity of affection (In X Ethic. L.10, no. 2091).

One could go follow this trail a while longer and come to still more interesting and surprising sights, but the point is clear enough. Concepts like “happiness” and “the common good” have meanings in the classical tradition, and these meanings have consequences. When one attempts to define these terms in a wholly materialistic sense or, worse, to pretend that they have no fixed meanings, one reaches toward the formlessness of modernity. This is a terrible thing to do, reducing practical reason itself to chance, and it is still more terrible to do so unwittingly.

Robert Grosseteste’s integralism

Over the past few years, there have been numerous attempts to mark out a course for postliberal political thought by looking to preliberal regimes. Much attention has been devoted to St. Louis IX’s France. One could devote similar attention to St. Louis’s contemporary, Frederick II, and his rule in Sicily and the Holy Roman Empire. Though perhaps one would find somewhat less to admire in Frederick’s conduct than St. Louis’s. And underpinning all of this is reliance on St. Thomas Aquinas and his successors, all writing in the milieu of St. Louis, Frederick II, and the popes.

The distinctions between these various sources is not irrelevant. While papal pronouncements, such as Boniface VIII’s Unam sanctam, represent a definitive source of political theology, the approaches taken by this or that kingdom are not in and of themselves definitive. Political prudence necessarily admits of different solutions in different contexts (e.g., ST II-II q.47 a.3; II-II q.50 a.2). In a given context, the example of Frederick II or, indeed, St. Louis might be unavailing while the example of some other ruler might provide clearer guidance. The development of postliberal thought through preliberal thought requires more, not less, information about the various realms of Christendom.

For a variety of reasons, one finds less attention, at least in postliberal or Catholic circles, devoted to questions of English history. I have written previously on some questions, however, both seriously and satirically. The reason, I think, why English sources have been neglected and why those sources are important is the same. The precedents of England before the so-called reformation have been drawn into post-reformation polemics, particularly liberal and protestant polemics.

It is common to see this or that pre-Tudor practice or person framed as a precursor to protestant or liberal practices. This is certainly true in the legal context, where the English common law has been stripped, unjustifiably, of its important civil and canonical antecedents and presented as the bulwark of liberalism and protestantism. This makes it essential to recover those civil and canonical precedents, however. Heightening the civil and canonical roots of the common law offers an important perspective on the common law and its modern interpretation.

I.

In and of itself, especially in the legal context, this would be a praiseworthy goal. But, since preliberal regimes are considered an important source of guidance for postliberal thought, it is doubly important to have an accurate picture of Christendom before liberalism. St. Louis IX is not Frederick II, for example, and one may draw different conclusions from the reigns of either ruler. And England under the Plantagenets and Tudors represents still another source of preliberal political thought.

One leading figure of England under the Plantagenets was Robert Grosseteste. Born in humble circumstances around 1175, Grosseteste became eventually one of the most prominent churchmen in England—and, indeed, the whole of Europe. He lectured on theology at Oxford, teaching Franciscans such as Roger Bacon, and wrote a number of very influential theological and scientific treatises. He was no less successful in his administration at Oxford, serving, by some accounts, as the first chancellor of the University. In 1235, he was elected bishop of Lincoln, a suffragan diocese of Canterbury. In Francis Stevenson’s magisterial biography, Robert Grosseteste, one reads that Grosseteste’s predecessor, Hugh de Wells, probably had commended Grosseteste to the chapter (and conferred on him archdeaconries and other tokens of favor).

While perhaps not as well known generally today as Albertus Magnus or Thomas Aquinas, Grosseteste contributed significantly to the revival of Aristotelian philosophy in the Church, translating into Latin and commenting upon some of Aristotle’s texts. He also helped introduce the writings of Dionysius the Areopagite to the west, translating and commenting upon them. In other words, Grosseteste was one of the leading minds of the Church when he was elected bishop of Lincoln. His diocese was geographically huge in addition to being politically and culturally important, containing, as it did, the University of Oxford.

Some have attempted to find in Grosseteste a forerunner of the so-called reformation, though this overstates the matter. Like other bishops of great learning and moral clarity, Grosseteste struggled against abuses in the Church wherever he found them. Much of Grosseteste’s fame as a proto-reformation figure comes from a letter he wrote in early 1253 (Ep. 127, Luard pp. 432–37) refusing to accept one of Innocent IV’s nephews as a canon (with a rich prebend, no doubt) of Lincoln. Part of the fame of this letter stems from a confusion: it was addressed to a papal official named Innocent present in England, not Pope Innocent himself. Grosseteste’s letter, at any rate, does not deny the pope’s authority in any way; instead, it protests, in sharp language, against a perceived misuse of that authority. Grosseteste’s refusal had some effect, since Innocent later that year restored the rights of the English Church regarding election and presentation.

It is important, as I said, to emphasize Grosseteste’s Catholic beliefs and attitude toward the Holy See. He was not a proto-reformer; instead he was one of many Catholic priests and bishops who sought over the centuries to purge abuses from the Church. It would make just as much sense to call St. Charles Borromeo or St. Jean Marie Vianney a protestant for their zeal to restore the portions of the Church in their care to holiness and virtue. There is little reason, then, to hide Grosseteste’s example away.

II.

One could go on and on about interesting and picturesque scenes from Grosseteste’s life, to say nothing of his writings, but I will here confine my scope to just a few of Grosseteste’s letters. In some of these letters we see the interaction of Church and secular authorities worked out by one of the leading minds in the Church at the time. In addition to the evidence from St. Louis’s France and Frederick’s Sicily, the thought of Robert Grosseteste on some of these problems is an important source as we begin to recover the idea of Christendom.

It is probably a little misleading, I admit, perhaps a little too late, to speak in terms of Grosseteste’s “integralism.” Even in Frederick II’s endless struggles with Gregory IX and Innocent IV, no one would have seriously denied that Church and temporal society were closely connected and interrelated. The suggestion that the two ought to be separated in a definite way, that the Church ought not to play a central role in the life of a Christian polity, would have been met with some combination of horror and amusement.

Some time in the fall of 1243—no earlier than the end of October—Grosseteste wrote to King Henry III with evident concern about Henry’s interference in an ecclesiastical dispute (Ep. 192, Luard pp. 308–09). Word reached Grosseteste that Henry had seized the property of the Benedictine abbey of Bardney and ordered his official, William de Compton, to provide not only support for Walter de Beningworth and his monks but also to grant them access to the church at Bardney. In Grosseteste’s letter, we find clear evidence of Grosseteste’s notions of the limits of the civil power.

Stevenson explains the convoluted dispute between Grosseteste, the monks of Bardney, and ultimately the cathedral chapter of Canterbury and Pope Innocent IV (pp. 155–60). What happened was this. Grosseteste’s supporter, Thomas Wallensis, archdeacon of Lincoln, seized upon a dispute over a debt to diminish some of the privileges claimed by the monks at Bardney, an important abbey in the diocese. The dispute—Wallensis angling to quash Bardney’s privilege and Walter standing on claims of that same privilege—soon spiraled out of control. The Bardney monks appealed to the chapter at Canterbury, which excommunicated Grosseteste, claiming the right to assert the powers of the archbishop sede vacante. On the other hand, Grosseteste deposed Walter with the assistance of the Benedictine abbots of Warden, Ramsey, and Peterborough. Finally, Pope Innocent IV intervened and ordered the sentence against Grosseteste (but notably not Walter) rescinded.

Grosseteste’s primary concern in writing to Henry, however, was the report that Henry had seized the temporalities of the abbey and directed William de Compton to assist Walter de Beningworth and his monks. Grosseteste began by noting that the royal power extends only so far as doing right. The monks of Bardney were in rebellion against their spiritual father, which is far worse than rebellion against one’s natural father. Henry’s order to William de Compton therefore exceeded royal authority insofar as it favored the unjust rebels. In other words, Henry’s royal power did not extend far enough favor injustice.

Grosseteste anticipated an objection: what if the sentence against Walter de Beningworth was unjust? First of all, Grosseteste responds, it should not be presumed that the monks of Bardney justly rebelled against their ecclesiastical superiors until the Church has declared it. Unless the Church found justice in their cause, it should be presumed unjust. Second, Grosseteste outlines a general limitation the royal power. Whether the decision against the monks of Bardney was just or unjust, the royal power cannot restore them to their possessions against the judgment of the ecclesiastical power. He compares this to Uzzah, struck dead by the Lord for presuming to touch the ark of the covenant. Perhaps Henry was interfering out of zeal: Uzzah touched the Ark to steady it when it tottered.

From Grosseteste’s letter to Henry III regarding the dispute at Bardney, we can see that Grosseteste believed that it was simply beyond the royal power to interfere with ecclesiastical affairs. Whether Henry believed the deposition of Walter de Beningworth was just or not was irrelevant; likewise, it did not matter whether Henry was motivated by an excess of zeal or not. The royal power cannot interfere with the judgments of the ecclesiastical power. To do so was to cross a line that ought not to be crossed.

III.

The dispute between Grosseteste and the monks of Bardney was not the only complicated ecclesiastical dispute he found himself embroiled in. Indeed, one dispute in particular attracted considerable attention in England and elsewhere, not least because of the precedent it would set, one way or the other. In 1238 or so, Grosseteste found himself at odds with his own cathedral chapter at Lincoln. Grosseteste, expressing his view of the authority and duty of a bishop in his own diocese, undertook to conduct a visitation of the prebendal churches held by the priests of the chapter of Lincoln. This was received exceedingly poorly by those priests and touched off a dispute that would last until 1245.

The twists and turns of the dispute are outside my scope here. Stevenson explains the matter at great length in Robert Grosseteste. Suffice it to say that Grosseteste adduced numerous arguments, including arguments from scripture and the teachings of the Church, to support his claim to conduct a visitation of the dean and chapter. For their part, the dean and chapter asserted that it was entirely unprecedented for a bishop to conduct such a visitation and they commanded the priests subordinate to them in the prebendal churches to disobey Grosseteste. Grosseteste responded by suspending the dean, precentor, and sub-dean of Lincoln from the cathedral. At length, Pope Innocent IV resolved the case at the Council of Lyons, for the most part in Grosseteste’s favor. At the very least, Innocent confirmed Grosseteste’s right to conduct a visitation of the dean and chapter.

At one point, early in the dispute, the dean and chapter obtained a prohibition from Henry III, forbidding the dispute between Grosseteste and the chapter from being tried before ecclesiastical judges. Grosseteste wrote two letters to the chapter around 1240 concerning the royal prohibition (Epp. 91, 92, Luard pp. 285–87). Grosseteste was quick to remind the chapter that a canon of the Council of Oxford held in 1222 excommunicated anyone who interfered with the liberties of the Church. In Grosseteste’s view, the liberty of the Church required this dispute, between the bishop and the chapter of his cathedral, to be tried by ecclesiastical judges.

Grosseteste unleashed stinging rebukes on the chapter for presuming to obtain a prohibition from Henry. If the chapter took this step, it certainly imperiled the liberty of the Church. They were excommunicated by the canon of the Council of Oxford. More than that, the chapter was faithless, turning away from God and the courts of God’s Church toward Egypt and Pharaoh for help. And they were perjurers, having previously sworn oaths with Grosseteste regarding the resolution of dispute. Strong medicine, indeed.

In a sense, this is a counterpart to Grosseteste’s admonition to Henry III in the Bardney case. Ecclesiastical disputes were, for Grosseteste, ecclesiastical disputes. Just as Henry III could not involve himself in the dispute between Grosseteste and Bardney, the dean and chapter of Lincoln could not seek to remove their dispute with Grosseteste from the ecclesiastical courts by the connivance of the king’s court.

As the coronavirus pandemic has recently heightened disputes between the Church and various secular authorities, Grosseteste’s notion of the liberty of the Church takes on new importance. Involving the secular authorities in the Church’s business infringes upon the liberty of the Church. Ecclesiastical disputes must be tried in ecclesiastical courts. Certainly the Church avails itself of tools that it would not permit to be used against the Church and has for a long time. That is to say, there is nothing especially troublesome about the Church seeking to vindicate its rights in secular courts, even if it would be a significant violation of those rights to permit someone to press a claim arising from ecclesiastical matters against the Church in those same courts.

IV.

A few years later, Grosseteste set forth a more positive vision of the relationship between the Church and secular rulers. Shortly after Innocent IV’s resolution of the dispute with the chapter of Lincoln, probably in early 1246, Grosseteste wrote a letter to Henry III (Ep. 124, Luard pp. 348–51). There, he identified the priesthood and the kingship as the two foundations of human government. The priesthood is concerned with eternal peace and the kingship with temporal peace. But temporal peace is ordered to eternal peace: temporal peace makes the transition to eternal peace easier (“ut per eam quae temporis est, facilius sit transitus ad eam quae aeternitatis est”).

An aside. Here we find a precursor of Jean Cardinal Daniélou’s Prayer as a Political Problem, recently reissued in a handsome paperback edition by Cluny Press. Temporal concerns are not irrelevant to spiritual concerns. And it is all too possible to erect temporal barriers to focus on spiritual matters. By the same token, like Daniélou, Grosseteste recognized that temporal peace—that is, the well-ordered concord of citizens—makes easier the transition to eternal peace.

And Grosseteste recognized that the relationship between the priesthood and the royal power will necessarily have to be close. They must help and promote one another. This does not mean that there will be undue interference, to say nothing of hindrance: the Church has, according to Grosseteste, no interest in managing the defense of the realm, the establishment of just laws, or the conduct of the nobility. By the same token, the royal power, meant to assist the Church, has no business interfering with the Church’s spiritual work, which is to say the work of sacraments and prayer. Grosseteste’s vision of concord and harmony between the ecclesiastical power and the royal power required that spiritual matters be addressed by spiritual men and secular matters by secular men.

It follows, then, that the royal power ought not to attempt to embroil clerics in secular business. And this seems to be broadly what was on Grosseteste’s mind. Grosseteste was responding to an (apparently) lost letter of Henry’s, which appears to have expressed the king’s views on Grosseteste’s refusal to admit a clerk presented by the king to a benefice. Apparently word had reached Henry of Grosseteste’s refusal, who wrote to clear matters up. It seems that the clerk in question was a forest judge (justitiarius forestae, a justice in eyre), and Grosseteste did not wish to bestow a cure of souls upon someone with such secular duties. No doubt this was the entanglement he wished to avoid.

We see that Grosseteste did not advocate a separation of Church and secular power by any stretch of the imagination. Quite the opposite. Temporal peace is necessary for an easier transition to eternal peace. And the two powers must support each other, helping and promoting each other. But there is a distinction: secular matters ought to be handled by secular men and spiritual matters by spiritual men. The Church does not seek to interfere unduly in the business of the secular authorities, but the secular authorities must defer to the Church in the Church’s sphere of activities.

Certainly this echoes Pope St. Gelasius’s Famuli vestrae pietatis (also known as Duo sunt), which set forth the doctrine of the two powers, ecclesiastical and royal, to the Emperor Anastasius. St. Gelasius implies what Grosseteste later stated: the Church does not seek to interfere unnecessarily in the temporal authorities’ administration of temporal matters. But in ecclesiastical matters, even the Roman emperor bows to the ecclesiastical authorities. Grosseteste echoed both of these teachings in clear terms over two letters to Henry. Certainly popes after St. Gelasius, notably Gregory VII and Boniface VIII, would deepen and clarify the teaching regarding the relationship between the spiritual and temporal powers.

Yet the importance of Grosseteste’s views should not be understated. In the 1240s, one of the most prominent churchmen in England—both with respect to his standing as a theologian and his importance as bishop of Lincoln—set forth a vision of a truly integral society, with the Church and the royal authorities supporting and promoting one another. But the roles for each in Grosseteste’s vision were clearly delineated. Secular men handle secular business. Spiritual men handle spiritual business. Secular men should not attempt to interfere in ecclesiastical business, and churchmen should not attempt to take ecclesiastical disputes outside the Church. The concord of order does not require separation so much as it requires clarity and distinction.

Frederick, Aquinas, and sacrilege

Frederick II’s Constitutions of Melfi present an extremely expansive view of royal power. Among the most famous—or infamous—provisions is the law that no one was permitted to dispute the judgments, laws, deeds, and counsels of the king (I.4). Indeed, to do so was, under the law, similar to sacrilege (ibid.). It has been argued that Aquinas’s approach to the law represents a rejection of Frederick’s centralizing, totalizing approach. One would assume, therefore, that Aquinas would reject Frederick’s decree that questioning his official acts was similar to sacrilege. But this is not quite what happens. In his treatment on sacrilege, Aquinas adopts a position very similar to Frederick’s (especially as it was interpreted)—and, we shall see, other sources in the classical legal tradition.

It is worth noting, of course, that Frederick did not invent this law. It was initially a constitution of King Roger II, dating to the middle of the twelfth century, which Frederick then took up into his great code for Sicily in 1231. But a closer examination of the law reveals even more interesting dimensions. Kenneth Pennington has observed that this provision of Roger’s was drawn from an even older source: Justinian’s Codex (9.29.2). But Roger edited it in interesting ways. Justinian stated that it was only forbidden to dispute the judgments (Disputari de principali iudicio non oportet) of the emperor. This was the likeness (instar) of sacrilege for Justinian. Roger expanded to prohibition to all the official acts of the king, not merely his judgments, but declared that it was only similar (par, from pars) to sacrilege (Est enim par sacrilegio disputare). Pennington notes that Andreas de Isernia, the commentator on Frederick’s Constitutions, picked up on the change from instar to par by Roger and Frederick and suggested that the change meant that it was permissible to petition the king to amend something he had done if it was against the common good.

In other words, while Justinian’s provision in the Codex was narrower than Roger’s, covering only the judgments of the emperor, it was understood as an absolute prohibition: it was the likeness of sacrilege to question the emperor’s judgments. Roger expanded it to cover all the official transactions of the king, but commentators like Andreas de Isernia understood another slight variation in the language of Roger’s law (later Frederick’s) to relax (slightly) the rigor of Justinian’s law. If the king’s decision was contrary to the common good, a subject did not commit sacrilege by questioning it and petitioning the king to amend it.

Just a brief look, therefore, changes the complexion of Frederick’s expansive provision. For one thing, it was not an innovation by a centralizing, totalizing dictator. Frederick was merely restating a century-old law of Roger II. Ernst Kantorowicz, in his wonderful Frederick the Second, describes the conditions of lawlessness that preceded Frederick’s accession to the throne. Restating Roger’s laws, therefore, was a necessary part of restoring order in Sicily. More than that, Roger was simply adapting the much older law of Justinian for Norman Sicily. And far from signifying the expansion of royal power, a subtle—but, Pennington argues, obvious—linguistic change was understood to moderate the force of the law. But whether questioning the acts of the king is the likeness of sacrilege or merely similar to sacrilege, and whether there is an exception to the prohibition, it is still strange to modern sensibilities to describe it in those terms.

One point, raised by Alasdair MacIntyre and others, is that Thomas Aquinas implicitly rejected the expansive legislation of Frederick II and Louis IX in favor a decentralized, natural law approach. I have previously questioned this claim: I think MacIntyre is wrong about some of the historical contingencies, including Frederick’s imperial legislation (as opposed to his Sicilian legislation), and wrong about Aquinas. In fact, one finds some support for the seemingly very expansive statute of Frederick (and Roger and Justinian) in Aquinas’s treatment on sacrilege (ST II-II q.99).

The first objection in Aquinas’s treatment of sacrilege is that sacrilege seems not to be the violation of a sacred thing, since Gratian (C.17 q.4 d.p.c. 29, added in the second recension) notes that sacrilege includes questioning the ruler’s decisions and appointments (ST II-II q.99 a.1 obj. 1). The claim is that the ruler’s decisions and appointments seem to have nothing to do with sacred things. Thus, if questioning the ruler’s decisions and appointments is sacrilege, sacrilege has nothing to do with sacred things. Obviously, for Aquinas, sacrilege is irreverence for sacred things (ST II-II q.99 a.1 co.). How, then, to answer the objection?

It would be easy, perhaps, to say simply that there is nothing sacred about the ruler’s decisions and appointments and therefore questioning them is not sacrilege. But this is not what Aquinas does (cf. ST II-II q.99 a.1 ad 1). He observes that Aristotle holds that the common good of the nation is a sacred thing (Ethic. I.2, 1094b10). Aquinas explains this elsewhere, noting that care for the common good has a likeness to God’s rule over the universe (In I Ethic. L.2). Therefore, irreverence for the sovereign and his decisions is called sacrilege by a kind of likeness (ST II-II q.99 a.1 ad 1). In other words, Aquinas answers the objection not by holding that the ruler and the ruler’s acts are not sacred, but by holding they are—through their connection to the common good.

Now, obviously, one may say that the common good exception is a significant exception, but that itself requires some examination. To escalate all questions to questions of the common good is itself opposed to the virtue of prudence. For one thing, the ruler and the subject do not have the virtue of prudence in precisely the same way in all cases (cf. ST II-II q.47 a.12). Indeed, Aquinas notes that we ought to defer to the undemonstrated conclusions of prudent men to the same extent as the demonstrated conclusions (ST I-II q.95 a.2 ad 4). But the natural law does not require the same law for all: the conclusions of practical reason are not the same for everyone (ST I-II q.94 a.4 co.). In other words, a question of the natural law is more serious and more obvious than a mere case of disagreement with the conclusions of the ruler. The exception does not seem then so large.

In this regard, Aquinas follows his contemporary Andreas de Isernia’s commentary on Frederick’s statute (I.4). While Aquinas avoids the question of instar and par, preferring the formulation secundum quandam similitudinem sacrilegium dicitur, set up by Roger’s variation on Justinian’s Codex, he ultimately lands in the same place: questioning the decisions of the ruler is called sacrilege by a kind of similitude, except (implicitly for Aquinas) where they do not serve the common good. Indeed, it is because the ruler’s acts are connected the common good that they assume a sacred character for Aquinas—following Aristotle.

And Aquinas’s argument shows how widespread the claim was, really. We have seen that Frederick merely restates Roger’s law, which was an adaptation of Justinian’s Codex. Aquinas notes that Gratian’s dictum following the canon Si quis suadente (C.17 q.4 c.29) sets forth the same rule, but more absolutely: it is sacrilege to dispute with the judgments or appointments of the ruler. This is an interesting observation, since Si quis suadente, a famous decree of Innocent II at the Second Lateran Council, establishes the privilegium canonis—the personal inviolability of clerics and religious, violations of which were reserved specially to the Apostolic See, except in cases of penitents in articulo mortis. Gratian’s dictum notes that there are more components to sacrilege than merely laying violent hands on a clerk or monk (C.17 q.4 d.p.c. 29).

In other words, the entire legal tradition from Justinian to Roger to Frederick, passing through Gratian, Aquinas, and Andreas de Isernia, holds that it is akin to sacrilege—and sometimes sacrilege simpliciter—to question the official acts of the ruler. This goes back to Aristotle and is founded upon the ruler’s responsibility to pursue the common good in his official acts.

Private property and the common good

On October 3, Pope Francis handed down his second social encyclical, On Fraternity and Social Friendship, already known by its incipit, Fratelli tutti. It is, like Laudato si’ before it, a document of penetrating insight and uncommon clarity. Francis astutely diagnoses most of the problems afflicting neoliberal society and points to potential solutions to these problems. Fratelli tutti is a long document and I am suspicious of anyone who claims to have digested the whole thing in a week. It is, I think, a document that will require time to consider and process adequately, especially in the light of Laudato si’ and his other pronouncements on the social question. However, some of his points have already caused a lot of discussion. One such point, which has attracted a lot of attention, particularly from leftists with more or less Catholic sympathies, is that the right to private property is a “secondary right” (n. 120).

In a sense, Francis says nothing new when he calls property a “secondary right.” Pius XI, in Quadragesimo anno, recognized that, like everything else, private property must be ordered to the common good (n. 49). Francis says essentially the same thing, when he writes that “private property can only be considered a secondary natural right, derived from the principle of the universal destination of created goods. This has concrete consequences that ought to be reflected in the workings of society. Yet it often happens that secondary rights displace primary and overriding rights, in practice making them irrelevant” (n. 120).

It is clear that Francis, unlike most of his readers on the left, understands Pius’s point: a secondary right is a right, but it cannot be allowed to “displace primary and overriding rights, in practice making them irrelevant.” In this regard, Francis remains squarely in the tradition of Pius XI, Pius XII, John XXIII, Paul VI, and John Paul II. The leftists who take up Francis’s statement as a new charter depart from that tradition. And not merely in the context of property. To say that a secondary right is no right, of course, would be to sweep away, for example, most legal and political procedures, since they are, after all, for the most part only secondary rights. Certainly one does not imagine Francis’s loudest interpreters saying, for example, that a trial by jury may be dispensed with simply because it is a secondary right.

Of course, given the strident criticism in some circles of Ius & Iustitium and the project to recover the classical legal tradition, nothing would give me greater pleasure than seeing the recognition, especially in leftist circles, that legal procedures, whether judicial or administrative or penal, are not absolute mandates and ought to be harmonized always with the common good. Indeed, if the misreading of Fratelli tutti leads people to realize that the common good occasionally requires dispensing with norms in favor of substantive action, I cannot complain too much about the misreading. Certainly, on Twitter and elsewhere, there has long been a rejection of private property. It has only been a vestigial liberalism that insists upon positivistic norms even as it demands the abolition of private property.

Setting all of that to one side, there is another dimension to this question, which has not been adequately considered. That is, it is a commonplace to say, with Pius XI and Francis, that private property must be ordered by the political power to the common good. But there is not nearly as much consideration of whether private property is in some meaningful way connected with the common good. In an October 17, 1946 letter to Charles McCoy, Charles de Koninck observes that Aristotle and Aquinas held that communism—even Socratic communism—is perverse and may be resisted by force. That is, for De Koninck, a communistic people does not seek a common good even per accidens and may be resisted by the ruler who always and everywhere must seek the common good. But De Koninck’s analysis in the letter is a little sketchy.

In an interesting dictum, about which I have written briefly previously, Aquinas connects private property with the ability to resist the despotic power (ST Ia q.81 a.3 ad 2). Aquinas distinguishes the despotic power from the politic and royal power. The despotic power rules its subjects as slaves since they have nothing of their own (ibid.). On the other hand, subjects of the politic and royal power are free subjects because they have private property and can thereby resist the orders of the ruler (ibid.). Indeed: it is due to their private property that they can resist the ruler (ibid.).

Now, I concede here that this point is a little tricky, not least because of the development of the discourse in Catholic circles. Much of the current, illiberal moment has been inspired by the insipid free marketeer rhetoric of groups like the Acton Institute. Certainly their presentation of Catholic social teaching as more or less coextensive with right-wing, free-market economics is a distortion of the Church’s thought. It is, therefore, greatly cheering to see Francis emphasizing the Church’s perennial teaching: private property has to be ordered to the common good. But questioning, whether based on Thomas, there may be some connection between the common good and private property ought not to be taken as an endorsement of Actonite economics.

In the De regno, Aquinas observes that a ruler is unjust insofar as he departs from the common good (4.24). An oligarchy, seeking the benefit of a few, is more unjust than a democracy, which seeks the good of the many (ibid.). In a tyranny, the ruler seeks his own good; in this sense, then, a tyrant is maximally unjust (ibid.). A ruler must seek the common good—it is in the nature of being a ruler—and when he stops seeking the common good, he becomes unjust. There is, of course, a spectrum with tyranny being at the terminus.

Aquinas draws his comment in ST Ia q.81 a.3 ad 2 from Aristotle’s Politics, notably Aristotle’s discussion of slavery. There, Aristotle makes the same point: the despotic power is the power of a master over his slaves (In I Pol. L.3, n. 64). The despot is free to pursue his own interests without resistance from his subjects; the despot, therefore, is a tyrant. Aquinas’s connection therefore is radical: a slave has nothing of his own to resist his master. But someone who has something of his own can resist another. This transforms the person into a free citizen, who must be ruled politically (ST Ia q.81 a.3 ad 2).

There is no discord in resisting a tyrant, as a general matter (ST IIaIIae q.42 a.2 ad 3). The connection, therefore, becomes clear. In order to resist the tyrant, Aquinas, following Aristotle, holds that one must have something of one’s own (ST Ia q.81 a.3 ad 2). Otherwise, one is in the condition of a slave, precisely because a slave has nothing of his own to resist his master. That is to say, a citizen cannot resist the tyrant if he does not have something of his own with which to resist the tyrant. (Perhaps one might call this the material basis of resistance.) Private property therefore serves as a bulwark against tyranny.

The connection is apparent in other ways. Elsewhere in the Politics, Aristotle discourses on common property. He makes, in the course of that discussion, a couple of interesting points. First, Aquinas observes that Aristotle holds that common property leads to dissensions among the citizens (In II Pol. L.4, nn.198–99). It is worth observing that discord among the citizens is per se opposed to ordered concord (e.g., ST IIaIIae q.37 a.1). By the same token, Aquinas notes, when citizens are united in concord, they will share their property freely (In II Pol. L.4, n. 201). He also notes that community of property destroys both the natural love of self and the virtue of generosity (In II Pol. L.4, nn. 202, 204). There is no generosity in distributing common property (ibid., no. 204).

Aquinas returns to these points in the Summa theologiae. Certainly he acknowledges that the common destination of goods is in the natural law, and that private property is superadded to this by human law (ST IIaIIae q.66 a.2 ad 1). But he observes that private property is fitting for several reasons (ST IIaIIae q.66 a.2 co.). His second and third reasons are directed to the ordered concord of the citizens (ibid.). His first reason approaches the point he makes in the commentary on the Politics regarding private property and natural love of self (cf. In II Pol. L.4, n. 202). Seen in this light, one follows his argument that the addition of private property to the natural law is a matter of reason—as opposed to mere caprice (ST IIaIIae q.66 a.2 ad 1).

Furthermore, Aquinas also holds that a tyrant encourages discord and sedition among his subjects, so that he may rule over them more securely (ST IIaIIae q.42 a.2 ad 3). One sees therefore an equivalent connection: common property, tending as Aristotle and Aquinas believe it does, to dissensions among the citizens (In II Pol. L.4, nn. 198–99) ultimately achieves the goal of the tyrant, to secure his own rule through discord and sedition. To put it another way: the discord and disorder created by common property is exactly what the tyrant wants, since through that discord and disorder, the tyrant will be able to rule over his subjects more easily.

In other words, one sees that, so far from providing a material basis of resistance to tyranny, common property sets up a dangerous configuration of circumstances. First, it leads itself to dissensions among the citizens, which is precisely opposed to ordered concord (i.e., the common good). Second, common property is opposed to natural self-love and the virtue of generosity. Finally, the dissensions among the citizens it causes are entirely congruent with the tyrant’s strategy of encouraging dissensions to secure his own rule. All of that is to say, common property is attended by several serious vices conducive to tyranny.

Now, certainly, all of this was and is known to Pius XI and Francis (or their assistants), so we must understand it carefully in light of Quadragesimo anno and Fratelli tutti—and the many other pronouncements that amount to the same thing. It is clear Francis no less than Pius XI understands that this is not an on-off distinction: the right to private property, even if only secondary, “has concrete consequences that ought to be reflected in the workings of society.” To reduce a secondary right to no right at all is, even on Francis’s terms, a pernicious error (even if I am happy about it in other contexts). To understand the manner in which it “ought to be reflected in the workings of society,” I think, one has to understand, as Thomas did, the connection between private property and the common good.