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.

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.

Another debate over integralist law

A thousand years ago, which is to say in February, shortly before the coronavirus pandemic, I wrote a piece for The Josias about integralist penal law. I characterized the piece as fragmentary, intending to point out topics for further discussion and research rather than to outline a coherent “Penal Statutes of the Empire of Guadalupe” (or whatever else one might have in mind). Fundamentally, there are still questions that have to be answered. Indeed, the ground upon which those questions have to be asked remains, for the most part, uncleared. There must be a project of recovery and clarification. The work at Ius & Iustitium that I am pleased to be able to contribute to is, I think, a necessary first step in such a project. But much remains to be done.

Recently I saw on Twitter a thread inquiring about what an integralist would say to a non-Christian about the juridical status of non-Christians under integralism. Such a thread seems to implicate necessarily some of the points I raised in my Josias “fragments.” Certainly in matters of religion, non-Christians may not be coerced into accepting the Faith (ST IIaIIae q.10 a.8 co.). And in general their rites ought to be tolerated, except insofar as they are contrary to the common good (ST IIaIIae q.10 a.11 co.). The question of political office is a little more complicated in Thomas’s thought (cf. ST IIaIIae q.10 a.10). And, of course, the Church herself has more recently than the 13th century taught on these topics in documents such as Dignitatis humanae, though precisely what the Church has taught in Dignitatis humanae is occasionally disputed.

By the same token, however, the Second Vatican Council teaches, in Gaudium et spes, that “political authority, both in the community as such and in the representative bodies of the state, must always be exercised within the limits of the moral order and directed toward the common good—with a dynamic concept of that good—according to the juridical order legitimately established or due to be established” (#74). More than this, it ought to be remembered also that “the political community and public authority are founded on human nature and hence belong to the order designed by God, even though the choice of a political regime and the appointment of rulers are left to the free will of citizens” (ibid.). Jean Cardinal Danielou emphasized that religion is part of the temporal common good (cf. Gaudium et spes #75). This has unavoidable consequences, especially when the Council teaches that it is for the leadership of the state to order the state to the common good, thereby preventing it from tearing itself apart (Gaudium et spes #74).

None of this is especially obscure information. But, ever since the Mortara affair, over two years ago, despite the fact that Aquinas and the writings of the popes are freely available on the internet, it has been clear that few of integralism’s interlocutors intend on doing the reading. One must therefore return always to the same couple of sources to set forth a few very simple principles. Now, of course, these discussions are not really debates about technical juridical questions or indeed broader questions of jurisprudence. They are, at best, requests to be reassured that integralism and liberalism have no meaningful differences and, at worst, attempts to prove that integralism and liberalism have meaningful differences.

Of course, it ought to be frankly and cheerfully conceded that integralism and liberalism have meaningful differences. As a political theology, liberalism is radically and absolutely opposed to the Church and her teachings, to say nothing of an authentically Catholic politics. There will be unavoidable conflicts. How this cashes out in terms of a specific juridical question is, however, not obvious in every case. Nor can it be. The demand for universal, a priori juridical structures is fundamentally opposed to prudence as Thomas, for example, understands it (cf. ST IIaIIae q.47 a.8 co.; IIaIIae q.50 a.1 co.). Framing laws, after all, requires concrete considerations relating to a given state (ST IaIIae q.96 a.1 co.). One might say, perhaps provocatively, that the compulsive demand for universal, a priori juridical structures is connected in a fundamental way to the political theology of liberalism.

We do not always discuss how serious a problem this is. In De civitate Dei, as I cannot help mentioning, Augustine takes up Cicero’s definition of a commonwealth (De civitate Dei 2.21, 19.21). For Cicero, the commonwealth requires a consensus of right and common utility—“res publica res populi, populus autem non omnis hominum coetus quoquo modo congregatus, sed coetus multitudinis iuris consensu et utilitatis communione sociatus” (De re publica 1.39). Even Augustine’s alternative definition in De civitate Dei 19.24 requires fundamentally some kind of agreement; the citizens of that commonwealth make a commonwealth by agreeing—indeed, agreeing harmoniously—upon the objects of their love. The dissensions that liberalism necessarily engenders cannot be neutralized indefinitely through means of liberalism’s political theology, as we see over and over again.

This is why the project of recovering the classical legal tradition is so important. The perennial jurisprudence of the Church—and of Christendom—avoids the traps posed by liberal concepts and the rotten political theology underpinning those concepts. To put it another way, keeping in mind the Church’s teachings as explained by St. Thomas and the Second Vatican Council, the integralist state, which also follows the classical legal tradition, avoids the totalizing impulses of liberalism to craft a one-size-fits-all approach that may well not serve the common good of a particular state. Prudence forbids that sort of approach, even if it might be rhetorically helpful in the context of a Twitter debate.

There are, for example, in addition to things like the Summa and the teachings of the Second Vatican Council, magisterial pronouncements like Innocent III’s decretal Novit ille and Boniface VIII’s bull Unam sanctam, both of which set forth the power and authority of the Roman pontiffs in temporal matters and the circumstances in which the popes have indicated that they may exercise that authority. More than that, we have the strongly suggestive statement of Thomas in his commentary on the Sentences of Peter Lombard that the pope stands at the summit of both spiritual and temporal powers (In II Sent. d.44 q.2 a.3 exp. text.). To be sure, any question of integralist law is bound up extremely closely with the question of the pope’s temporal authority and how the state interacts with that authority.

This is to say that a serious response would be that, while the liberal may demand an immediate juridical concept that would be applied mechanically and universally, the integralist ought to consider the extend to which offering such a concept would be to give the game away to liberalism. Even setting to one side the question of bad faith rhetoric, the classical legal tradition simply does not trade in jurisprudence unmoored from concrete considerations—that is to say, unmoored from the virtue of prudence.

Lincoln, Aquinas, and the limits of judicial decisions

Lincoln’s First Inaugural, delivered in the gravest circumstances on March 4, 1861, is remembered for Lincoln’s passionate defense of the Union and implacable opposition to secession. It is also remembered for his closing, calling upon true patriotism and republican virtue. It is less remembered, except perhaps by Lincoln specialists and lawyers, for his principled rejection of judicial supremacy. Indeed, for Lincoln, the expansion of the power of the judiciary beyond particular cases was the end of self-government by a free people. For Lincoln, if the power of the Supreme Court were expanded to determine the policy of the entire government, the Supreme Court (or a majority of it) would rule, not the people.

This was not an academic question for Lincoln. In Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), Chief Justice Roger B. Taney had pronounced the Missouri Compromise unconstitutional and declared, going beyond the precise issue in Dred Scott, that Congress had no power to ban slavery in the territories. Lincoln noted that the Constitution was, in fact, silent on that point, notwithstanding Taney’s resolution of the specifics of the Dred Scott case. Given that the expansion of slavery was for Lincoln the entirety of the issue imperiling the Union, the Supreme Court’s decision threatened the most serious consequences.

It is against this background that Lincoln stated, “I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government.” For Lincoln, the limitation of judicial decisions to the parties to the case served as an important check on an erroneous decision. An incorrect decision could be reconsidered and overturned before it served as precedent if it were limited to the parties before the court.

But he offers a still more serious reason. Throughout the First Inaugural, Lincoln defends the proposition that in the United States, under the federal constitution, the people are sovereign. He observes, “[t]his country, with its institutions, belongs to the people who inhabit it.” He articulates his theory of popular sovereignty when he says that, “[a] majority held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people.” On the other hand, he finds the expansion of the judiciary power beyond the particular cases before the courts—the expansion of the judiciary power, that is, into the policy of the entire government—to be the antithesis of this popular sovereignty. He says as much: “if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers . . . .”

Lincoln himself was true to his principles, refusing to abide by Chief Justice Taney’s May 28, 1861 decision in Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861), which held that Lincoln did not have the authority to suspend the writ of habeas corpus unilaterally. Lincoln’s July 4, 1861 message to Congress, the most compelling theoretical argument for the president’s absolute leadership of the state in cases of emergency, is in large part an answer to Taney’s Merryman decision. In other words, Lincoln acted upon the principle he articulated in the First Inaugural: the courts did not and indeed could not set policy, even on constitutional questions, for the whole of the government.

In this view, Lincoln has a surprising antecedent: St. Thomas Aquinas. As we begin the work of recovering the classical legal tradition, it is important to note where the Anglo-American tradition finds support in the classical tradition. Much of the anxiety about the classical legal tradition—and much of the anxiety about common-good conservatism—stems from a thorough ignorance of the classical tradition. In many cases, the Anglo-American tradition represents a borrowing, often inexpert, from the ius commune. Aquinas’s jurisprudence, articulated systematically in the Summa Theologiae, represents an important part of the classical tradition. Finding, therefore, support for a particular position in the Anglo-American tradition, here Lincoln’s view of the limitations on judicial decisions, in Aquinas is a significant result.

Aquinas held that a judge’s judgment is like particular law regarding a particular fact (ST II-II q.67 a.1 co.). For this reason, just as a general law should have coercive power, so too should a judge’s judgment have coercive power between the parties. Indeed, Aquinas notes that the judge ought to be the personification of justice, which requires two parties (ST II-II q.67 a.3 co.). But Aquinas rejects outright the suggestion that the judge’s power is plenary over the commonwealth. Aquinas instead follows Aristotle who holds that it is better for laws to be framed than it is for judges to judge every single case (ST I-II q.95 a.1 ad 2). One may say then that Aquinas’s position is that a judge is empowered to make particular law for particular parties to justice between them, but not to make laws for the entire commonwealth.

This is bolstered by Aquinas’s sense of who rightly interprets laws. Throughout the Summa Theologiae, Aquinas emphasizes that the lawgiver is the interpreter of the law. In his article on the emergency, in fact, he objects that only the lawgiver is competent to interpret the law (ST I-II q.96 a.6 obj. 1). He answers this by observing that a person acting in a true emergency is not interpreting the law, but instead following the intention of the lawgiver who, keeping always the common good in mind, must have intended something than the perilous result that would be obtained by following the letter of the law (ST I-II q.96 a.6 ad 1). Nothing in this suggests that Aquinas holds that anyone other than the legislator properly interprets law. Indeed, his theory of the emergency is predicated on not being able to obtain an authoritative interpretation from the lawgiver (cf. ST I-II q.96 a.6 co.).

The conclusion is further strengthened by Aquinas’s discussion of whether a judge may remit a just punishment. First, the judge, as noted above, declares what is just between two parties, and remission of the punishment would deprive the prevailing party of his due (ST I-II q.67 a.4 co.). Second, the judge exercises public authority when he pronounces judgment, and is the good of the commonwealth that evildoers be punished (ibid.). Nevertheless, the sovereign, who is the supreme judge of the commonwealth, has the authority to remit a just punishment. The judge simply does not have the discretion that the supreme judge of the commonwealth does (ST I-II q.67 a.4 ad 1).

Therefore one may say with considerable authority that Aquinas’s view of the role of the judiciary is limited. The judge pronounces justice between two parties in a given case. He does not have plenary authority over the law, to say nothing of the laws framed by the legislator for the common good of the whole commonwealth (cf. ST I-II q.90 a.2 co.). The authoritative interpretation of the law—and the power to frame laws for the commonwealth—belongs to the legislator, not the judge. The idea that judges deciding particular cases between particular parties would be able to affect all the citizens of the commonwealth is altogether alien to Aquinas’s theory of jurisprudence.

We see then that Lincoln’s notion in the First Inaugural represents, in a definite way, an important conclusion of the classical legal tradition. Lincoln conceded that judicial decisions are binding between the parties. He also held that those decisions are “entitled to very high respect and consideration in all parallel cases by all other departments of the Government.” Aquinas would no doubt agree with this. The lawgiver simply cannot have in mind all possible cases when he frames laws generally (cf. ST I-II q.96 a.6 co.). A judicial decision between two parties may well clarify for the lawgiver, who is the authoritative interpreter of the law, unintended consequences or the need for modification of a given law. Moreover, the lawgiver may be persuaded by the reasoning of the judge and accept the judge’s interpretation.

But Aquinas would also agree with Lincoln’s startling conclusion that “if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers . . . .” Judges do justice in particular cases between particular parties; they are not the sovereigns. Lincoln’s concept of sovereignty, which he articulates elsewhere in the First Inaugural, was ultimately popular sovereignty. His conclusion that the expansion of the Supreme Court’s power beyond particular cases was to the prejudice of the sovereign people follows upon eminently Thomistic principles.

The inherent dispute—whether the courts have the power to set the policy for the whole of the government—is low intensity most of the time. It emerged briefly during the chaotic run up to the Supreme Court’s Obergefell decision, but the flare ups were quickly resolved and everyone acquiesced in Obergefell. Nevertheless, the resolution is mostly one of rhetoric: there is no definitive juridical resolution. There is no clear statement in the Constitution that resolves the matter against Lincoln and Aquinas. Indeed, the Case or Controversy Clause suggests that Lincoln and Aquinas have a point. As interpretative tools like textualism and stare decisis are employed to achieve substantive results well beyond anything those tools can support on their own terms, the rhetorical resolution of this dispute looks less and less satisfactory.

Of course, judges themselves are entirely free to adopt the classical approach. Just as originalism and textualism are supported with the claim that they reflect judicial humility, so too may the limitation of decisions to the parties to a case be supported with the claim of humility. Indeed, for Thomas Aquinas, the supreme example of judicial humility is to confine judicial decisions to particular cases between particular parties, leaving the declaration of law and policy to the legislator or the chief magistrate of the commonwealth. Certainly, given the support for that view in the American tradition, nothing prevents its adoption.

The Order of the World in 2020

It is all too common to limit engagement with Carl Schmitt to a handful of books he wrote in the 1920s: The Concept of the Political, Political Theology, Dictatorship, and Constitutional Theory. The reasons for this are more or less obvious. Schmitt’s postwar output is worth considering, however. Or at least part of it. The merits of The Nomos of the Earth in the Ius Publicum Europaeum are well known. I have written before about his pamphlet, The Tyranny of Values, which has great descriptive power, especially in the endless conflicts over the hygienic measures aimed at coronavirus (and almost everything else in 2020). But another short essay—slightly neglected like everything else Schmitt wrote after the war—worth reading is The Order of the World After the Second World War. Indeed, Schmitt’s careful analysis is well worth considering in the current situation.

The Order of the World was published in the spring of 1962—before the Cold War looked like it might become all too hot. All the same, it is one of Schmitt’s meditations on the Cold War. Here, Schmitt argues that the Cold War is part of one revolutionary war, which he defines as “a war that has for its object the destruction of the social order in the country of the adversary, the extermination of its dominant groups, and the realization of a new distribution of power and property, without taking the distinction between offensive war and defensive war into account.” Indeed, Schmitt observes that the revolutionary war dissolves all prior concepts—including the concepts of war and peace themselves—into the question of means.

Schmitt then paraphrases Mao Tse-tung’s analysis that the ratio of cold war to hot war in the revolutionary war is 10:1. Only after “pacific means” have brought the situation to readiness does the hot war emerge. “In other words, the revolutionary war is constituted in nine-tenths by the cold war, and only the last tenth, although decisive, is hot war.” However, enmity—“the essence of any war whatsoever”—is present in the cold phase no less than the hot phase of the overarching revolutionary war. Indeed, the status of revolutionary war as an intermediate state between war and peace as classically defined produces considerable anxiety for Schmitt.

Of course, the concept of enmity, essential to Schmitt’s thought going back to the 1920s, is not a concept free of difficulty. One does not find Thomas Aquinas opposing Our Lord’s command to love our enemies to a just war (ST II-II q.40 a.1 co.) or to the concept of prudence in war (ST II-II q.50 a.4 co.). Still less does one find the evangelical precepts opposed categorically to war by Gratian and the patristic sources, including St. Augustine and St. Gregory, he collects (C.23 q.1). Nevertheless, it is hard to take enmity as the organizing principle of the unity of order. This difficulty does not, however, vitiate Schmitt’s clarity as an observer. Certainly one often hears of Karl Marx’s perspicacity as a critic of liberal political economy without—one supposes—an endorsement of Marx’s metaphysics (e.g., Benedict XVI, Encyclical Letter On Christian Hope “Spe salvi” 20–21).

At any rate, it is clear that Mao’s fraction was very much on Schmitt’s mind in the spring of 1962. In Theory of the Partisan, Schmitt also dwells on it, focusing there on the connection between the ratio and total war. After all, for Mao (according to Schmitt) peace is just enmity by other means. Of course, Schmitt is deeply concerned with the instrumentalization and neutralization of the classical legal and political concepts in the service of a total revolutionary war, to say nothing of the intermediate condition between war and peace. For Schmitt, the revolutionary war heralds nothing less than barbarism.

Lurking behind all of this is Cicero’s maxim inter bellum et pacem medium nihil sit, from Eighth Philippic (1.4). As Schmitt observes, Hugo Grotius’s use of this concept in his De jure belli ac pacis became influential in the development of the ius publicum Europaeum. Schmitt discusses it because, obviously, the intermediate states between war and peace are determined to a great extent by the concepts of war and peace. However, it is worth noting that Grotius cited the maxim in the context of determining whether a time of truce is war or not (III.1). Grotius, relying upon the maxim, concluded that a truce (or a safe-conduct or a parole of prisoners) is indeed during the war. More precisely it is an agreement during the war that suspends the effects of the war while the state of war continues. One might say that Grotius cited the maxim in an attempt to untangle an intermediate state. Nevertheless Grotius’s rigidity becomes for Schmitt part of the foundation of the classical international law—and the “humanitarian progress” created by that classical law.

It is indeed Schmitt’s anxiety that the revolutionary war, which dissolves these categories and instrumentalizes classical concepts of every kind of law, will roll back the humanitarian progress of the ius publicum Europaeum. Filling the void will be the total war, the partisan war. The revolutionary war, Schmitt observes in Theory of the Partisan, makes a hero of the partisan. The partisan simply imposes the sentence that follows upon the necessary—revolutionary—criminalization of the enemy. For Schmitt, sailing close to the wind with respect to his concrete circumstances, the classical war does not make a criminal out of the enemy. It is possible to conclude an honorable peace with the enemy but never the criminal.

It is worth considering in the summer of 2020 whether war may be made against institutions (or organizations). In both The Order of the World and Theory of the Partisan, in addition to war between states and within states, Schmitt looks to war against class enemies. Not without reason. Certainly Lenin and Mao, the two theorists of revolutionary war Schmitt points to, were above all interested in class warfare. And to the extent that class warfare still exists today, Schmitt’s observations are certainly valid. War against class enemies is necessarily revolutionary war, which is to say a total war that dissolves and instrumentalizes prior concepts.

But as supposedly neutral juridical structures are instrumentalized, seemingly with the goal of an entirely new distribution of power and property—especially with respect to the Church—it is worth asking whether the revolutionary war has opened up a new front. Certainly the endless, roiling animosity (enmity?) toward the Church expressed in the context of Supreme Court decisions like Our Lady of Guadalupe School and Little Sisters of the Poor reflects something very like the criminalization of the Church. Already the Democratic nominee for president outlines the actions to be taken to address some of these decisions. It is worth remembering that the vast majority of the revolutionary war is a cold war—only after “pacific means” have brought about propitious circumstances does the hot war emerge. In the meantime one ought to consider Schmitt’s warning the revolutionary war produces only one kind of hero: the partisan, who is content either to punish the criminal or be punished as a criminal.