Monday, January 31, 2011

The problem of state neutrality, again

My attention has recently been drawn to a new organisation, the English Defence League. I'm very hazy about what it is all about* but one paragraph in the mission statement caught my eye.

We also recognise that Muslims themselves are frequently the main victims of some Islamic traditions and practices. The Government should protect the individual human rights of members of British Muslims. It should ensure that they can openly criticise Islamic orthodoxy, challenge Islamic leaders without fear of retribution, receive full equality before the law (including equal rights for Muslim women), and leave Islam if they see fit, without fear of censure.

Is this something Catholics would want to push forward, or be concerned about?

As I've blogged before, it is a principle of liberal political theory that what is allowed in the 'private sphere' is determined by principles of public justice. So if members of a particular religion treat each other in a way which conflicts with these principles, then they are subject to the rigour of the law. If the principles of public justice being applied are correct, then there could be no objection to this; the problem is that those principles are contested, and that different religious groups disagree with the standard liberal ones.

In recent years, two developments have taken place which are in conflict with each other, and the conflict is becoming increasinly clear, even though both developments have been promoted for a long time by the same political groups, broadly speaking the Left.

1. The principles of public justice have become increasinly demanding. Government agencies have increasingly seen it as their remit to change minds and behaviour: to give a couple of examples, they have been concerned about the upbringing of children (for example, the campaign against corporal punishment), about the rules governing private clubs and associations (for example, on the equal treatment of women, or on smoking). We have seen an increasing impatience on the part of government agencies with churches which do not admit women or homosexual activists to the various forms of ministry.

2. There has been an increasingly evident policy of allowing certain groups to run themselves by their own rules. The two best examples of such groups are Muslims and homosexuals. So the laws on actual bodily harm cannot be applied to those engaged in masochistic sexual acts; the laws on public decency cannot be applied against homosexuals in public parks. Prosecutors are reluctant to look into the public, let alone the intramural or private, acts of Muslim activists who use threats or incite others to hatred or violence. And most famously, Sharia courts have been recognised as forums for arbitration, and as such their decisions have status in English law.

In practice the two tendencies have been able to co-exist by the principle that public principles of justice cannot be enforced against anyone who can shout 'homophobe!' or 'Islamophobe!' at their accusers. There has long been a principle that they cannot easily be enforced against those who can should 'racist!', which can be tough on black victims of domestic violence, but with Islam we have a group which can make maximum use of this concession, which therefore takes on enormous political implications. For as a religion Islam is in a position to create ghettos in the historical sense: areas of cities, for example, where the law of the land is not enforced, but where the rules are set and enforced by community leaders.

(To the question Why has the Left promoted two developments in such clear opposition to each other?, the answer is to be found in the books of the 'New Left' and their predecessors. Basically, (1) is their essential agenda; (2) is tactical: it is simply a way of weakening the strongest institutions in society which oppose the essential agenda. Since those institutions are often Christian, they can be weakened by insisting on privileges for other religions, and on groups such as militant homosexuals who are irreconcilably opposed to Christianity. It is actually no surprise that as the tactical value of these other groups decline, and the possibility that non-Christian institutions, including Islamic ones, will start to assert themselves against the liberal agenda on social attitudes, the Left will turn on them without mercy.)

In looking at this situation it is hard to know whether Catholics should be more worried about the increasingly aggressive public principles of justice, the increasingly aggressive assertion of independence by Islamic groups, or the likely outcome of the clash between the two. Already there has begun a backlash within the Left, which has belatedly realised that it has created a phenomenon it cannot control, and which has very little in common with the Left in terms of social attitudes. The promoters of the backlash would instinctively insist on a more rigorous enforcement of the principles of public justice, and the more they are worried about the social practices of Islam the more they will want to make those principles intrusive and demanding.

For this reason my sympathy has to some extent always been with the Muslims. They are attempting to live according to the principles of their religion in the midst of a culture highly hostile to those principles. It is not their fault that concessions have been made to them which has created an anomaly in the law. When I see secularists turning their sights on Muslims, I know that attacks on the Catholic Church will follow, if only to demonstrate that the secularists are even handed.

Allowing a community to live according to its own rules, within some limits, is actually quite a widespread historical phenomenon. Jews are the prime example of people who both wanted to have their own rules, and were permitted to have them by the state, as a community within a community, from the Temple tax enforced on the diaspora in the time of Our Lord to the original 'geto' of Renaissance Venice. There is nothing wrong with a group living by its own rules, if these rules conform to correct public principles of justice. What we are faced with today is a unreasonable set of public principles, on the one hand, and a set of group rules which include (or tolerate) cultural practices which are contrary to perfectly reasonable public principles.

If Muslim women are forced to marry, for example, this is of course unacceptable. What worries me is that the public policy makers who may, in time, be forced to recognise this point think that it is unacceptable that Catholic girls do not have instant access to abortion. The much less well-developed Catholic ghetto, in which we have our own schools and hospitals run on Catholic principles, is already under ferocious attack. We should beware of giving ammunition to our attackers.

That is not a principled response, however. A principled response would be this: the primary focus of Catholic political engagement must be with arguing for a better set of public principles of justice. Only in this way will we be able to defend our own institutions, and only in this way will the political problem of Islam become tractable: the process of polarisation between heavy-handed liberal public principles and radicalising Islam can be put into reverse.

What this amounts to is the persistent attempt to make public principles Catholic. That is to say, we should work for the conversion of England.

*The EDL appears to be a far-right group. Extremist groups claiming to combat certain aspects of left-wing ideology, without any connection with a broadly based social conservatism or religion, is a tradition which goes back at least to the anti-clerical royalists of the French Revolutionary era. It includes Muarass, Mussolini, the Nazis, and more recently the Pim Fortuyn movement, in varying degrees of nastiness.

Saturday, January 08, 2011

Rhonheimer's mistake

I have been reading Fr Martin Rhonheimer's reply to Luke Gormally, and it seems to me that he is making a demonstrable mistake. This is of interest since he is a rigorous and in many ways an impressive writer. This is my analysis.

Rhonheimer’s argument against Luke Gormally:

1. Rhonheimer’s (R’s) argument is based on the idea that the sexual acts forbidden by the Natural Law are to be understood in terms of the intentions of the agent.

2. R points out (correctly) that in order to show that the use of an anovulatory pill is (normally) wrong, Humanae Vitae (HV) had to rule that it is the contraceptive intention of the user which is key: thus, the use of the Pill is wrong iff the user intends to impede conception.

3. This R contrasts with arguments frequently met with in the tradition before Humanae Vitae, which make use first and foremost of the notion of ‘unnatural acts’.

4. R points out that since in outward behaviour sexual acts contracepted using the Pill appear less deformed than sexual acts contracepted using a condom, this appeared to some ‘Revisionist’ theologians to leave an opening for the Pill to be used licitly as a form of contraception. This was countered by HV as described (2).

5. R claims that HV’s more developed expression of why contraception is wrong should be used in relation to condoms (and presumably any other form of contraception): these are wrong iff there is a contraceptive intention.

6. R expresses the relationship between the contraceptive intention and the traditional language of unnatural acts by saying that sexual acts are unnatural if they are done with a contraceptive intention. Again, they are contrary to chastity if they are done with a contraceptive intention.

7. On the other hand, R says that it does not make sense to say that acts are contrary to chastity because they are unnatural, if there is no contraceptive intention. This limitation of the prohibition of Natural Law to acts done with a contraceptive intention, R claims, is something revealed by HV in light of the personalistic approach of Gaudium et Spes, though it is also in accord with the long-standing tradition of understanding moral acts in terms of the intentions with which they are done.

Thus R writes:
I am aware that, as you [Gormally] wrote in your letter, your “critique did not rest on any claim that the use of a condom is necessarily contraceptive” but rather on the argument that condomistic intercourse “is an essentially non-reproductive sexual behaviour.” You perhaps can accept what I say about contraception, but you want to distinguish – from any form of contracepted acts – those acts which in addition are behaviourally essentially non-reproductive and therefore “against nature.” In my view "Humanae vitae" has rendered obsolete this distinction.

Rhonheimer seems to me correct in points 1-4. Point 7 is demonstrably false. It has an obvious counter-example in (heterosexual) sodomy: as the Church teaches, acts of sodomy are illicit under Natural Law regardless of the intention with which they are done. These acts need not be motivated by a contraceptive intention; they may have many intentions. It is quite clear however that sodomy carried out with the intention of pleasure, for example, is wrong, even within marriage.

It is not, of course, forbidden as mere outward behaviour. Bodily movements over which the will has no control for one reason or another are not subject to moral appraisal. The prohibition refers to acts chosen and intended. Rhonheimer correctly says that contraceptive intentions make acts wrong; in the case of sodomy, it is the intention to enagage in a complete sexual act in vase indebito which make acts wrong. In the case of murder it is the intention to kill.

On Rhonheimer’s argument it may seem puzzling that acts with sodomistic intentions are contrary to the virtue of chastity. Why should they be? The argument in Humanae Vitae about the unitive and procreative aspects of sexuality underpins the claim that acts with a contraceptive intention are contrary to chastity; what argument is there in the case of acts with a sodomistic intention? There is no need, however, to seek arguments in HV for what all Catholics at the time of HV and before and since have taken for granted, the wrongness of sodomy; one can look at the previous tradition. This tradition, framed in terms of unnatural acts and teleology, is not, contrary to Rhonheimer, abrogated by HV, which was seeking a new argument to explain a case to which the old arguments did not so clearly apply.

That, however, is a problem for Rhonheimer, not for his opponents. It is enough to say that Gormally’s argument seeks to identify condomistic sex as a form of sodomy (so there is a question of the exact definition of sodomy), and that Rhonheimer’s response denies that sodomy is intrinsically wrong. Whether or not Gormally is correct (and while his argument is compelling we will ultimately have to await a clarification from the magisterium), Rhonheimer must be wrong, since the illicit nature of sodomy is far too deeply embedded in the tradition of the Church to be considered a fallible teaching (see Romans 1:24-27).

Postscript: The condemnation of heterosexual sodomy is implicit througout the Tradition, though the focus is generally on homosexual acts. In the modern era sodomy is clearly defined as anal intercourse (or any intercourse 'in vase indebito'), regardless of the sex of the participants, and of course regardless of the further intention of the act, and this is clearly condemned in all the manuals of moral theology. Here are a two examples of the condemnation of sodomy (clearly in the sense just described) by the Magisterium.

1. A friend has found the following in the classic 'Contraception' by Noonan: "On 3 April 1916, [the Sacred Penitentiary] declared that when a husband wished to commit 'a sodomitic crime', he must be resisted by his wife and she could not cooperate 'even to avoid death' as the act would be 'against nature' on the part of both. The Penitentiary expressed 'great astonishment' that some priests had taken a milder view. (Decisiones Sanctae Sedis, p.35)" (p. 514, fn.136, John T. Noonan, Contraception, Mentor-Omega, New York, 1965)

2. The 1917 Code of Canon Law includes sodomy among the sexual sins for which the laity are to held 'infames'

Can. 2357. par. 1. Laici legitime damnati ob delicta contra sextum cum minoribus infra aetatem sexdecim annorum commissa, vel ob stuprum, sodomiam, incestum, lenocinium, ipso facto infames sunt, praeter alias poenas quas Ordinarius infligendas iudicaverit.

There are parallel norms dealing with clerics (2358 & 2359).