Seeking More

A Catholic Lawyer's Guide Based on the Life and Writings of Saint Thomas More

C. T. Rossi

• Publisher: TAN Books
• Year: 2017
• ISBN:
  9781505105605
• Topic: Theology & Religion
• Subtopic: Christian Denominations

CAN YOU BE A GOOD LAWYER AND STILL BE A GOOD CATHOLIC?The short answer is "yes." But you can't do it without understanding that being a lawyer is a special vocation — one that calls upon you to know how your Catholic faith intersects your professional life. In these times when developments in the civil law run contrary to traditional Catholic moral teaching, how is a lawyer expected to properly render to Caesar the things that are Caesar's, and to God the things that are God's?Seeking More is a guide designed to help you discover the Church's perennial teachings on the nature and purpose of law, the balance required in Church and State relations, and the duty of all Christians to work for the common good. However, like any good lawyer, author C.T. Rossi goes further than merely providing those teachings in the abstract and applies the rules to the facts through an in-depth study of the life of St. Thomas More.

PART I

VENUE, JURISDICTION, AND PLEADINGS

The Calling of the Catholic Lawyer

CHAPTER 1

Venue and Forum

Two Swords, Two Vocations

Issues

What are the sources of law?

What are the legal roles of Church and State?

What is the purpose of the law?

Discussion

The Sources of Law

The proper starting point when talking about being a lawyer must be law. In America, the English Common Law forms the basis of our legal system. Law students learn that the sources of law in our system are written federal and state constitutions, statutes enacted by the legislature, and case law issuing from the opinions of judges. Unless we are dealing with a constitutional or human rights issue, our practice usually involves what is called “positive law”—the concrete, geographically localized rules concerning what behavior is and isn’t allowed. Outside of an impassioned closing argument to a jury, the average American lawyer doesn’t use the word “justice,” nor is he called upon to ponder the meaning of what is “just.” That is not to say lawyers don’t believe in justice—we do. But the day-to-day demands of practice don’t contain much room for us to think about higher legal concepts. While this may be a (sad) fact, it cannot be an excuse for us never to think about the higher nature of law. Whether work demands it or not, our Faith demands it of us as faithful Catholics.

Like the “sources of law” that the law student learns, the Catholic Church relies on a hierarchical framework of laws derived over the centuries, best exemplified in the work of St. Thomas Aquinas.1 Under this Thomistic framework, the highest law is the Eternal Law, which correlates with “the mind of God.” As mere earthbound creatures, we don’t have access to the Eternal Law. Yet despite our human limitations, God has provided two sources of law that are accessible to us: the Divine Law and the Natural Law.

The Divine Law consists of truths that have been received through either Scripture or Church teachings (Mt 13:44). The Natural Law is the body of moral precepts that is discovered by use of human reason without specific resort to religious sources (Mt 13:45–46). The Natural Law is accessible to all humans whether Catholic or non-Catholic, Christian or non-Christian, atheist or agnostic. The Church holds that the discovered principles of the Natural Law will never contradict what is found in the Divine Law—most notably the Ten Commandments (Mt 6:24, Lk 16:13). Our incorporation of the Natural Law to our practical, historical, and societal circumstances is called the “human law.” Human law and positive law as discussed above (constitutions, statutes, regulations, and case law) are roughly equivalent. What is often overlooked is that within our Common Law, there is a strong Natural Law foundation.2 That tradition, dating back to “Catholic England,” was not wholly abandoned with the Reformation but was extended by non-Catholic thinkers such as John Locke, whose ideas permeated the minds of America’s founders.

Due to original sin, humans struggle to discover the Natural Law and properly incorporate it into our human law—and often get it wrong. That process, like the development of Common Law through case law, is a never-ending process of trial and error. However, just as case law is guided by precedent and stare decisis, the pursuit of justice in the Catholic understanding is guided by the principles that the Natural Law can never violate the Divine Law, and human law may not violate the Natural Law.

The Roles of Church and State

Because we have these two sources of law (Divine and Natural), there are two institutions (sometimes referred to as “societies”) to oversee the administration of each system of law—the Church and the State.3 The relationship between Church and State has been a source of controversy from the beginning of recorded history.4 When Christ uttered that we should render unto God what is God’s and render unto Caesar what is Caesar’s, He left us to work out what exactly belongs to whom (Mt 22:15–22). In later chapters we look at one of the most dramatic Church/State conflicts in history, when Thomas More was asked by the Crown to take an oath that his conscience deemed an unjust encroachment upon the rightful authority of the Church. More did not deny the authority of Henry VIII and Parliament to do those things that were in their competency: rather, he objected to Henry’s attempts to be not only king but also pope.

Henry VIII’s actions were a threat to the established order as Thomas More understood it through the Church’s teachings. In attempting to strike the proper balance, the metaphor that the Church has long used to articulate the proper relationship between the competing powers of God and Caesar is that of the Two Swords.

The Two Swords theory5 was first articulated in AD 494 by Pope Gelasius in a letter to Emperor Anastasius:

There are two powers, august Emperor, by which this world is chiefly ruled, namely, the sacred authority of the priests and the royal power. Of these that of the priests is the more weighty, since they have to render an account for even the kings of men in the divine judgment. You are also aware, dear son, that while you are permitted honorably to rule over human kind, yet in things divine you bow your head humbly before the leaders of the clergy and await from their hands the means of your salvation. In the reception and proper disposition of the heavenly mysteries you recognize that you should be subordinate rather than superior to the religious order, and that in these matters you depend on their judgment rather than wish to force them to follow your will.6

Gelasius highlighted the differing nature of the Two Swords through the use of two Roman legal terms: the auctoritas (authority) of the Church and the potestas (coercive power) of the State.7 Despite the distinction drawn by Gelasius, the jurisdictional boundaries between Church and State have been a consistent source of conflict. Not surprisingly, the history of the Common Law, most especially Magna Carta, has always recognized the division in the law between the secular authorities (the Lords Temporal) and the Church hierarchy (the Lords Spiritual).

Consistent with Gelasius’s Two Swords, the Compendium of the Social Doctrine of the Church clearly states that Church and State have different roles but doesn’t define precisely what they are.8 However, in his 2005 encyclical, Deus Caritas Est, Pope Benedict XVI does offer that the domain of the Church is faith, which rightly expresses itself in charity, while the domain of the State is reason, which expresses itself in justice. Pope Benedict’s concepts clearly hearken back to those twin fonts of law, the Divine and the Natural.

The Purpose of the Law

While the dividing line between Church and State may not always be clearly expressed, the object of those two institutions is clear: the people, sometimes referred to as Civil Society. Civil Society has been defined as “the sum of the relationships between individuals,”9 which finds its most fundamental expression in the family. The family forms a “society of a man’s house” (societas domestica), a society with rights and duties independent of the State.10 While each individual is made in the likeness of God and possesses inherent rights and dignity, individuals come together in community to better realize the “common good”11—fulfilling the commandment to “love thy neighbor.”12 The common good has been defined as “the sum total of all those conditions of social life which enable individuals, families, and organizations to achieve complete and efficacious fulfillment.”13

Civil Society also plays an important part in understanding sovereignty. The Church teaches that while all sovereignty comes from God, the sovereignty of the State flows from the people, and therefore the sole purpose of the State is to serve them through promoting the common good.14 That the State is bound to seek the common good of Civil Society is reflected in the traditional scholastic definition of law: “An ordinance of reason for the common good made by one who has care for the community and is promulgated.”15 While the definition is an aid in helping to define the proper role of the State, it also has a corollary function. If any specific item of the positive (human) law fails this definition, it “ceases to be law and becomes instead an act of violence.”16 In response to this threat of violence, there is a right to resist—preferably by passive resistance but, if necessary, with force of arms.17

The Church further reminds us that “the common good of society is not an end in itself” but must be oriented toward the ultimate goal of Man’s salvation.18 This means that the common good must never be sought in a purely utilitarian manner but rather in ways that respect the dignity inherent to the individual human being, who is made in the image of God, and the integrity of the family. The Church’s term for this is “Solidarity.”19

As social creatures, humans come together to form communities to achieve goals that are impossible to achieve in isolation. Howeve...

Table of contents

• Cover
• Title Page
• Copyright Page
• Dedication
• Contents
• Preamble: How to Use This Book
• Part I: Venue, Jurisdiction, and Pleadings—The Calling of the Catholic Lawyer
• Part II: Discovery—Lessons from the Life of Saint Thomas More
• Part III: Trial—The Matter of the King’s Marriage
• Part IV: Post-Judgment Proceedings—More Becomes a Martyr
• Bibliography and Recommended Reading