Monday, August 15, 2005

Analogy between Catholicism and law

I've recently heard a large number of comments from Protestants to the effect that if we don't have definitive epistemic access to the content of Magisterial pronouncements, then they can't be an objective source of authority. But I would argue that this is exactly the opposite of the Catholic view, which views papal infallibility as an expression of the infallibility of the Church itself. Papal infallibility specifies the formal mechanism by which doctrine becomes infallible, but the task of giving meaning to what the Pope says happens within the life of the Church. Thus, I drew an analogy to another system in which the objective meaning of objectively "binding" statements is often resolved after the fact: American jurisprudence.

It's not as if papal infallibility is simply separate from the Church, as if the Pope says it, and that's it. The teaching has to be evaluated in the context of the belief of the entire Church. Until that process is complete, the "meaning" of even an infallible pronouncement is not settled.

I'd analogize it to law, a situation that has been noted in the past. When the legislature passes a law, the law's meaning is not definitely fixed based on the opinion of any of the legislators that went into it or even the prevailing arguments, because people may have had vastly different reasons for voting for the law, so there has to be some principle for determining the meaning of the law authoritatively (a "rule of law"). Ordinarily, the meaning of the law is determined in subsequent applications, actual decisions made using the law, which may or may not reflect the intent of any of the particular legislators who passed it. That is the difference between an objective discipline determined based on formality (which the authority of the Catholic Church is), and a subjective discipline based on persuasion. Patrick's point is exactly that you have to appeal to objective teaching to ground anything, and Shawn and I are simply applying the rather ordinary criteria that one interprets the meaning of objectively authoritative statements primarily based on how they are subsequently applied (which is effectively what is binding) and the general reception of the document in the community, rather than the intent the authors had for the document (which is not). The canons of "Catholic jurisprudence" aren't all that different from English common law, which is unsurprising, as Catholic canon law was the primary basis for those systems.

Honestly, Catholicism is not particularly different from from legal scholarship. Before a definitive Supreme Court ruling, there may be a number of theories among lawyers, judges, and academics as to what the law means, none of which are binding but all of which represent various ways to understand and meaningfully apply the law, considering things such as original intent but also factors such as overall coherence of the jurisprudence in the area, giving effect to all provisions, presuming against repeal or preemption without stated intent, etc. After a while, you'll usually note some kind of practical consensus, which typically guides practitioners from there on out (this is what Patrick means by the "apologist" view as opposed to the "speculative views."). Sometimes, it simply remains bitterly divided even among different regions of the county, and sometimes the Court simply leaves it that way, exercising its own discretion as to when it reins in the lower authorities. This acceptance does not indicate that the Court agrees with all of the views or even any of them, but merely that until something definitive comes down, everyone does the best that they can.

Obviously, in such an objective system, formality is huge; anything which is definitely formal cannot be ignored. A step below that are matters of technical informality but high relevance, such as Supreme Court reasoning (not technically binding, but almost invariably persuasive), and there are steps below that, again based on relative formality, not authority. There's nothing inherently anarchic about such a system; indeed, I can hardly figure out how any system based on the "will of the people" giving meaning to objectively authoritative pronouncements (which Catholicism inherently is) can be grounded in anything other than such jurisprudence.

That's why we Catholics are always a bit baffled by the obsession with finding a definitive meaning for everything that can be fixed at a particular moment in time; that's simply not necessary for language to be objectively and authoritatively binding (and indeed, it's questionable as to how the definitive meaning can possibly be fixed in anticipation of all possible future contingencies). Epistemic certainty about meaning simply isn't necessary for something to be authoritatively binding; there's nothing incoherent about accepting an authority without having a definitive knowledge of every ruling the authority has made. You simply judge based on the internal operation of the legal system and the likelihood of interpretation within that system. Indeed, one could argue that there is considerably *less* certainty in the American jurisprudential system (since unlike the older English common law or the Catholic Magisterium, Supreme Court decisions can be overruled later), but we fallible lawyers all manage to muddle through somehow. Your argument sounds a great deal like "You shouldn't be American because your legal system doesn't provide certainty," to which I reply "Perhaps that's not a reasonable basis on which to make one's decision to be American."

Vatican pronouncements, like Supreme Court decision, are rather extraordinary means to resolve doctrinal disputes. In the ordinary course of things, teaching filters down by this deliberative process of determination within the Church, and unless there is such an extreme risk in allowing the process to continue that it must be cut off, that is ordinarily the preferred way for things to happen (viz., people achieving gradual consensus through deliberation). The PBC is nothing more than another voice in those deliberations; it provides a venue for certain people to speak their views based on their expertise. Generally, if people aren't advocating out-and-out lawlessness (i.e., denial of the objective authority of the Magisterium), then it's ordinarily permissible for this process to take place. That's why I tend to be less harsh on liberal and traditionalist Catholics than most; it's not my job to discipline them, but to bring them around to my way of thinking through articulation of my views (deliberative process). But if the rule of law itself is rejected (as in Protestantism), then there's no common foundation even to discuss things.

It is important to clarify what this analogy is, and what it is not. It is an argument that the de facto process of interpreting Magisterial documents is much like the de facto process for determining the meaning of a law at the level of the practioner, and that this is the ordinary way that things are done, both in the law and in the Catholic Church. It is not an argument that the Church is a democracy or that the Magisterium derives its authority from a "consent of the governed" theory. Instead, it is simply a recognition of the rather obvious fact that the surrounding legal system in a society places constraints on the objective meaning of a document, and that it isn't simply a matter of what the legislator intends to accomplish that determines what effect his laws will have.

A number of the popes, particularly those who were canonists, recognized this fact rather palpably. Indeed, much of the familiar language invoking the Fathers, Scripture, and every other form of authority was more or less formal. That is, even if the Pope knew for a fact that the Fathers did NOT teach something, he would still claim the patristic authority behind it. What is the reasoning behind such counter-intuitive language? Simple. The point was to make clear that the Pope was invoking his authority as Pope, heir to St. Peter and guardian of the Tradition. In other words, it is pious fiction, done for the purpose of leaving no doubt that his words must be accepted as Tradition, so none of the sneakier canonists strategies for avoiding them can prevail.

It turns out that this was a rather common practice in the patristic era, so that, according to Susan Wessel, writings that were true doctrinally would be attributed to the Fathers even if they were known to be forgeries! The point wasn't that anyone believed this explicitly, but it was the formal way of indicating that the writings were a legitimate part of the Tradition. It also worked in reverse; people responding to patristic writings against them invariably accused them of being forged, essentially saying in a formalistic way that the doctrine was not the doctrine of the Fathers. It was a very formalized notion of recognition and attribution that is far different from simply assessing the veracity of the source and trying to assess the intended meaning of the original author. It was really a process of determining the way those writings would be accepted as authoritative in the context of a particular dispute. And this seems to have been the norm throughout Christian history; the collective determination in response to actual theological controversies was more compelling than the historical facts about documents. This is one of the reasons that I consider Tradition more jurisprudential than historical in method.