Natural Law today

[Dr. Kent Lasnoski, Assistant Professor of Theology at Q.U., suggested that I read the introductory chapter to the following book and give my reactions.] 


I am responding to the introductory chapter of The First Grace: Rediscovering the Natural Law in a Post-Christian World, by F. Russell Hittinger, William K. Warren Professor of Catholic Studies and Research Professor of Law at the University of Tulsa, Department of Philosophy and Religion.

I approach the question from my own undergraduate philosophy background focused on Duns Scotus and William of Ockham, and from my graduate education in sociology.

The Franciscan tradition sees both Scotus and Ockham as developing the insights of Thomas Aquinas, even to the point of what Thomistic opponents call "nominalism." We accept Leo XIII's "baptism" of Aquinas as meaning that Aquinas's methodology needs to be taken seriously, especially his melding of his faith with his speculation, but that we should challenge Aquinas's theories just as Aquinas challenged earlier thinkers.

One version of history has it that nominalism led to bad consequences, such as the Reformation. A different version would say that it was the first step in the direction of what is generally accepted today in social science.

From the standpoint of sociology, norms arise from the expectations that people have for each other's behavior. When norms rise to a certain level, society (a government) reinforces them with a penalty, and the result is what we call "law." So a law is just a norm with a punishment attached. Which norms become law is a matter of politics. The persons in charge of making laws determine what laws shall be drafted.

Which laws should be drafted? The law-makers base their law-making on their personal beliefs about what is good and what is bad for society. There is no "natural law" that we can use as a criterion for what is a good law or what is a bad law. This makes my position the same as that of Justice Taney, and of the Court today that the author cites on page xxxii (32): the Court is "the basal or 'root' power, functioning as a vicar of public opinion."

This does not lead to total anarchy. It took societies hundreds of years to come to the conclusion that slavery is morally wrong, but societies have come to accept that principle. Popes ever since the 1500s made statements against slavery, but their voice had little effect on Spain or Portugal or England or Brazil until those societies came to the conclusion, without natural law theorizing, that slavery needed to be abolished. Our own society today is deluged with new laws and expectations, which is hardly a symptom of anarchy.

I have confidence that human communities eventually arrive at a more sensitive appreciation of the good and the bad, based on their experience. There is no natural law that those communities can use as the criterion. Sometimes they are wrong, just as societies were wrong about slavery. But eventually they will come to the "truth" about morality.

Saying that morality is determined by a consensus of societies over time is to me very congruent with my favorite statement of Scotus: "In processione generationis humanae, semper crevit notitia veritatis." "Over the course of human generations, the knowledge of truth steadily grew." (Ordinatio IV, d. 1, q. 3, n. 8 -- Ed Vives XVI, 136a) (This edition is available in the Q.U.Brenner Library archives.)

Therefore, the criterion for good and bad laws resides in the minds and hearts of the people in society--a nominalist position. Christians should argue for what they judge as good or bad on the basis of their Christian values. But Christians should not claim that non-Christians are being irrational if they do not have the same perception, and therefore Christians should not expect society's laws to reflect their own judgment. Christians are entitled, like everyone else in a democratic society, to work to shape secular law in the light of their faith, but democratic government requires that the majority must be persuaded of the justice of the Christian position. When Christians such as John Brown go outside the realm of civil discourse, discourse which acknowledges the human dignity of the opponent, the result is fanaticism. A Christian approach must be nonviolent, and nonviolence aims to convert the opponent.

It is true that law teaches, and that bad law teaches bad things. But law that is not accepted by society ends up being ineffective. Our experience with Prohibition shows us the unintended consequences of having a minority moral opinion enshrined in law.

Syria

What should Mr. Obama do?

I think he should abide by whatever the Congress votes.

Senator McCain argues that if he loses the vote, his presidency is ruined. I think that if he goes ahead and takes military action against the vote of the Congress, his presidency will be ruined.

If he yields to the Congress, he might well improve his relations with the Republicans who have been frustrating so much of his agenda.

Here is my naive political calculation. Obama took a risk by deciding to submit the issue to Congress. I applaud his taking that risk. He went against his advisers. I applaud that. Now if he follows the will of the Congress, he will be seen as taking an important step away from the policies that got us into Iraq. The Congress will have to take part of the heat for the decision. He and the Congress will be in it together. He will be seen as a courageous leader who is not beholden to the forces that seem to propel us so easily into military action. He will put the ball into the court of the United Nations, where the rest of the world can put pressure on Russia and China to contribute to a political solution, a solution which everybody sees as the only way out of the present situation.

Suppose the Congress votes to let him go ahead with military action. In that case, he should back off and refrain from military action anyway. Again, for the same reason as above, he will be seen as rejecting the Iraq-style approach that has cost us so much.

If he can go it alone in sending troops, he can go it alone in declining to send troops.

But, to quote an old slogan, I am hopeful but not optimistic. I predict that he will take the military approach, and we will be in a mess for the next ten years.

Indirect Charity

The word “charity” has two meanings.

In Christian circles “charity” is a synonym for “love.” “Faith, hope, and charity” are Paul’s triad, and they are sometimes translated “faith, hope, and love.”

But the word “charity” has the meaning of “gift-giving that is demeaning to the receiver.” People say, “I don’t want charity.”

Nevertheless, I want to use the word “charity” here, and hopefully rescue it from its negative connotation.

Charity or love is “passionate, respectful, vulnerable, faithful involvement” of one person with another person. In that sense, charity is the center of human life, and indeed of the universe--but I won’t get into the universe here. I want to talk about love or charity in relation to some of the most important challenges we face as a human race on this earth. The challenges are environmental, but they are caused by patterns of living that are economic and political.

I am inspired to write about this because of the recent Time magazine cover story on bees, and their disappearance. Frogs are disappearing, and I recently reflected that is has been years since I have seen a monarch butterfly.

It is easy to say that all human beings should be involved with each other respectfully etc., but that will not realistically deal with the problem. The problem is with our capitalist economy, and the way we structure the rules of its game.

Capitalism, its defenders say, is the greatest thing that has happened to the human race since the beginning of time. I agree that capitalism has solved some of humanity’s worst historical problems. It has almost eliminated famine, it has led to greater health and well-being for most of us, and it has contributed to human freedom by empowering women. One of its its opposites, “socialism,” has been a failure wherever it has been tried on a large scale. So I don’t want to eliminate capitalism. I want to make capitalism compatible with environmental survival. If we destroy our environment, capitalism will have turned from humanity’s greatest gift to humanity’s greatest evil. We are not doing capitalism well.

We need to extend our charity, our respectful involvement, to the rules of the capitalist game. Some of us have treated the capitalist model as an open invitation to selfishness

—“if we are all are as selfish as possible, we will all be better off.” That simplification ignores the reality that something as complex as a capitalist economy is a game structured by many rules. The rules are not set in stone. They can be changed, but if we operate on the principle that anything that threatens my self-interest is harmful, the people ahead in the game at the moment end up opposing any change in the rules of the game.

Indirect charity is the willingness to change the rules of the game to make the game compatible with human well-being, and indeed, of human survival. In that sense, indirect charity is no different from direct charity. It is simply our involvement with each other in vulnerable and faithful ways, but in ways that allow the changing of the rules of the game.

Why can’t we get a particular environmental problem under control? Because some of us are making money from a particular process--for example, the manufacturing of pesticides. Even if science leans toward saying that a product is environmentally harmful, some of us push ahead manufacturing it. After all, manufacturing provides jobs, and everybody favors creating jobs.

All of us need to be involved with the rest of us respectfully enough to consider changing the rules of the capitalist game even when changing the rules will diminish our profit margin. That willingness is what I mean by “indirect charity.” It is indirect because we will never see the people who benefit from the change, and so the term “involvement” does not apply in the same way that it does in face-to-face encounters. But the involvement is very real. It has costs and benefits. It might cost me and benefit someone else.

I mentioned that “science” can lean toward saying that a product is harmful. Here lies another problem with the way we are doing capitalism. If I operate on the principle that anything that diminishes my profit is harmful, I destroy the value of science.

Science can be the engine that drives capitalism, but if we play by the rule that we should ignore any scientific finding that we do not like, we kill the value of science. Science is never absolutely certain about anything. We can never prove a statement right--we can only prove statements wrong. A billion events that confirm a scientific idea will not confirm it absolutely, but one event that disconfirms the idea is enough to destroy the idea. Because we can never be certain about a scientific statement, it is always possible to find scientific studies that go against the general consensus. Look how long it took our country to accept the idea that smoking is harmful. Tobacco companies always found scientific studies that proved it is not harmful.

Global warming is a hoax, they say. There are scientific studies to prove it.

What capitalism needs is the willingness on the part of its practitioners to accept changing the rules when science seems to show a need to change those rules. That willingness is indirect charity.

A long time ago a political scientist named Karl Deutsch said that human organizations need faith. Faith, for an organization, is making decisions even when you are not absolutely sure about the benefit of the decision. Organizations need humility, in the sense that they need to question their own assumptions. I am arguing that they also need charity, in the sense that they need to be willing to accept some loss if the welfare of the larger human community is at stake.

Capitalism needs indirect charity.

Charter Schools

The term "charter school" has an elite ring to it. Only important people rate getting a "charter" for whatever they do. I think of  the Mayflower colonists.

"Voucher" is a word often spoken in the same breath as "charter school." A voucher is the way people pay for children to attend a charter school. A voucher is a piece of paper that pays tuition for a child to attend any school except a public school. Catholic parents have often argued in favor of vouchers. If a parent had such a voucher, the state would pay the tuition for her child to attend a parochial school.

Public school advocates argue that every dollar directed to a voucher takes away a dollar from a public school. They further argue that, if a school is religiously sponsored, government support of that school violates the first amendment prohibition against state support of religion. Parochial school advocates argue that the dollar is spent mostly for a service identical to what the public school provides, and is therefore worthy of state support. This defense has problems--arguing for the similarity of public and parochial schools weakens the assumption that the mission of a parochial school is religious. Along with the departure of vowed religious as teachers in parish schools, an attempt to portray the school as fundamentally secular has to contribute to the loss of the sense of religious mission that many critics have bemoaned in recent years.

However, the issue of vouchers for parochial schools is separate from the issue of vouchers for charter schools. Most charter schools are not religious in nature. Many of them are "for profit," schools designed to fit the market model by which, according to free-market enthusiasts, everything goes better.

Here are some of the results of standardized tests comparing voucher schools in Milwaukee and Racine, Wisconsin, with public schools in those cities. (Milwaukee has been devoting public funds to vouchers longer than any other city in the country).

The term "opt out" means that a parent has the choice to remove a child from a standardized test. The report gives average scores for Milwaukee voucher schools calculated with opt-out pupils included and with opt-out pupils not included.

Comparison of Wisconsin Public and Voucher School Test Scores -- 2012-2013    

Data from Wisconsin Department of Public Instruction

(Numbers are the per cent proficient or advanced)

Wisconsin--total state

Reading  - 36.2 % (proficient or advanced)

Math - 48.1

Milwaukee public schools                                  

Reading - 14.2                                             

Math - 19.4                                                 

      

Milwaukee voucher schools 

           (opt-outs not included; scores are about 1% lower if they are included)                         

Reading - 11.1

Math - 13.2

            

Racine public schools                                        

Reading - 21.6                                          

Math - 27.8                                        

Racine voucher schools      

             (data for these are from a small sample, and hence less reliable)   

Reading - 19.5                                                                                   

Math - 24.1  

Charter schools in Wisconsin get about the same amount of state support per pupil as do the public schools, but charter schools are often helped by the support of wealthy private donors.

    

The fact that charter schools are getting lower average test results than public schools in the same districts is reason to question the assumption that the name "charter" is a certificate of excellence.

Troubling Aspects of the situation

There are powerful national forces behind the voucher school movement. After Wisconsin Governor Scott Walker was targeted for a 2012 recall election, he received $2.2 million from out-of-state supporters of vouchers.

Voucher schools are not limited by the credentialing requirements of public schools. There is an argument that people successful in other fields go into teaching with much better results than do traditionally educated teachers. An alternate story has poorly prepared (and less well-paid) people going into teaching in voucher schools. Since voucher schools are often for profit, there are pressures to cut costs, and one way to do that is to hire less qualified people.

Voucher schools "skim" the better prepared students from the public system, leaving the less well prepared children behind. The profit motive does not favor caring for children with special needs, children with physical or mental disabilities, and emotional or behavioral problems; such children are left to be cared for by the public system. For whatever reason, there are an increasing number of such children in schools today. Partly this is because in previous years, many such children were kept locked up at home, but are now, thankfully, invited to participate in peers of their age. It is therefore surprising that public school children as a whole would perform better on the standardized tests in Wisconsin.

The movement toward voucher funding for schools builds on a story line that demonizes unions, part of a (successful) national strategy to de-legitimize unions in general. The movement becomes part of a larger political strategy favored by more conservative sectors of the Republican Party.

In the 2012 Wisconsin situation, Governor Walker followed a page from the playbook of the conservative forces just mentioned, and moved to destroy teachers' unions by eliminating their right to collective bargaining. The teachers fought back, giving the Governor something of a black eye, but resulting in a recall election that he won. He is now touting this victory ("the only governor in history to have survived a recall election"), and seems ready to make a run for the 1916 Republican candidacy for president.

Leaving poorer children behind with less community support is penny wise and pound foolish. Poorly educated people are more likely to end up in prison, where they will cost the state far more than might be spent now for education. But more importantly, the policy reduces the life chances of the poorest among us, making their lives more stressful and problematic. We need to remind ourselves that all children are “our” children.

In my playbook, poverty contributes to the devastating prevalence of single-parent families in our society. Poverty leads to poor education, which leads to crime, which leads to prison, which leads to unemployability, which leads to labeling as a poor marriage partner, which leads to single parenting, which leads to poverty, which leads to poor education, and on and on.

The sacrifices that many parents make to send their children to parochial schools are worthy of praise. Some wish to shield their child from moral corruption, corruption which often accompanies poverty. They may even wish to shield their child from contact with less desirable ethnic groups,  a motive which is less praiseworthy from a Christian perspective. They may judge that the parochial school does indeed provide a superior education, but this is a secular, not a religious, motive.

Half of the Catholic school children in the country now attend public schools. Surely the parents of such children are not choosing to harm their children, nor are they always making that choice because of economic considerations.

I do not advocate that parents withdraw their children from a parochial school. Every parent surely has the right to judge what is best for a child. What I do advocate is that supporters of parochial schools not become participants in efforts to demonize public schools and their personnel. Concern for the weaker members of our society, especially children, has to be at the center of our Christian perspective.

We want to be a society of what an earlier Republican president called "compassionate conservatism." We do not want, in the name of a godless economic theory, to remove the term "compassion" from our vocabulary.

Surplus population

We need a new economics.

Economics--in the sense of a way of thinking about exchanges, measuring exchanges, and rewarding exchanges.

Exchanging things is the heart of human interaction. The simplest human actions can be seen as an exchange. A mother smiles at her infant, and the infant smiles back. The exchange is rewarding to both. The reward is priceless--it cannot be measured in dollars and cents.

What has happened in our world is that exchanges have become more and more tied to money. Unless an exchange can be measured and symbolized by money, it is worthless. The result is that millions of people are unable to take part in the most fundamental exchanges: exchanges for food, housing, and medical care. Such people become, in the words of Charles Dickens, "surplus population." They are not needed. They should be allowed to die.

This is not what Jesus preached.

This is not a new problem. There was a surplus population in the thirteenth century, when the first followers of Francis of Assisi began to live among the people. Francis's approach was to forbid his followers to use money. In fact, they were not even to touch money. (Money in those days was confined to coins, and did not take the paper and electronic forms that it has in our time.) Francis saw people hoarding coins. With those coins they could buy land and drive people off that land. The coins represented power, just as money does today.

The difference between now and the thirteenth century is that back then the Church had great influence in society. The friars, as representatives of the Church hierarchy, used their influence to bring about a re-evaluation of how people looked at money. They focused on use, as opposed to possession. One ought to possess only what one could use in some meaningful way. Their re-evaluation had an effect on how people looked at money and exchange, and made the society more human and compassionate.

An executive today can "earn" $60 million in a year. What can he or she do with $60 million? One such entrepreneur in the 1980s would go into a restaurant, order everything on the menu, choose one item, and throw away the rest. Even that, though, would only cost a few thousand dollars. But $60 million?

Big house, big car. Huge house, huge car. Three huge houses, three private jets. What for?

It's a game. Show your rivals that you are important. What you use the money for is irrelevant. The point is to win the game of showmanship. But that money could be used to provide food and housing for thousands of people.

We need a moral re-evaluation of what money is for. "The sabbath was made for man, not man for the sabbath," Jesus said. Money was made for human life, not human life for money.

We are facing a head-wind of ideology, a theory that explains why it is right and just that one person make $60 million in a year. The ideology says that unless we allow that, in fact, unless we praise that, people will quit exchanging things and the economy will fall apart. When we praise the "earning" of $60 million in a year, everyone is motivated to produce more, and everyone is better off. A rising tide lifts all boats.

But it doesn't. Many boats sink. A Christian society is concerned about the people in those boats. We cannot let a nice theory baptize the sinking of millions of boats and the people in them.

What can we do to change this situation?

I suggest that we do what they did in the thirteenth century: start focusing on how we use money. We should confine our possession of money to a reasonable expectation of what our money can be used for. We should quit using money as a marker for power and prestige.

There is no chance that the people now making $50 million will voluntarily change their thinking. But people make $50 million because they invent something that 50 million people want--for example, computer games, or cars with seats that raise and lower, move back and forth, and are warm in the winter even before people sit in them. The economy depends on things that people want.

We are those people. The more of us that think about how we can use what we have, and not on how what we have makes us look important, the more things will change.

But won't this cause people to buy fewer computer games and nice cars?

That brings me to the second aspect of what we need: new ways of measuring exchanges.

The Exchange of Services and How to Measure Such Exchanges

I have a neighbor who has had a stroke and can no longer work for her living. I go next door and get her shopping list, go to the store, and buy what she needs for dinner. I exchange my time and effort for . . .  for what? For her appreciation and gratitude.

Right now there is no way to measure the value of that exchange. The exchange is worthless in our economy. We have to figure out some way to pay me for what I do, and to let her have the resources to pay me.

We need a new kind of money. Let's call it the "prayer." One prayer can buy fifteen minutes of my shopping time. My neighbor can reward me by giving me three prayers.

This is not a new unit of measurement. Some years ago Catholic Charities in my town would give a monthly food basket to people in exchange for prayer. That was not a meaningless exchange. Even a homebound and ill person can pray, and thereby avoid the stigma of accepting "charity."

A prayer is a combination of time and attention. When I pray, I spend time doing it, and I attend to what I am doing. That is valuable. That creates an exchange.

Prayer can be exchanged for regular money. You give me $50 and I give you five prayers.

I don't have to believe in a god in order to pray. I just have to take time and give my attention to the well-being of my exchange partner.

We have never been able to figure out how to provide enough "jobs" to get everybody involved in economic exchange. There are only so many things we can make, and we are on the verge of destroying our environment by making so many never-used things. I walk through a department store and ask myself, "how many of these things will end up in a landfill without ever being used by any human person?" The landfill gets bigger and bigger, and the atmosphere gets more and more carbon-saturated. The oceans rise higher and higher, and the storms get fiercer and fiercer. We need to slow down, quit trying to measure everything by traditional money, and start basing exchanges on something that a) allows even the weakest among us to contribute to exchange, and b) does not increase power and prestige.

A prayer has the advantage that it involves an exchange between two specific human beings. It cannot be hoarded. It can't be stored up. It makes us slow down and smell the roses.

Recently I attended a meeting that showed an hour-long film titled "Transitions." The film suggested ways that people can use other forms of exchange. One form was quantified, so that a person could go into a market stall, get a batch of carrots, and "pay" the owner by exchanging a text message recording the units of payment. No money changed hands, but the medium of exchange allowed the transaction to take place in an ordered way. After the film the group of about thirty people broke up into small groups and envisioned society in 2030. One idea that came up more than once was the idea of a "time bank." People could exchange their time for a tangible good. That seems very similar to what I called a "prayer" exchange.

Some years ago I read a review of a book that proposed that there be a separate kind of money for high-flying investment games, and for ordinary day-to-day exchanges. Economists can tell us if and how such a scheme might work.

We need to find such a scheme. It is unconscionable that in a world with as much creativity as ours, millions, billions, of people cannot contribute their time and ability to others.

There should be no such thing as surplus population.