Wednesday, February 07, 2007

Natural Law: The obligatory point of reference for civil law

In his Encyclical Letter Evangelium Vitae (The Gospel of Life), Pope John Paul II emphasized a point of critical importance for our times. He wrote, "Democracy cannot be idolized to the point of making it a substitute for morality or a panacea for immorality. Fundamentally, democracy is a 'system' and as such is a means and not an end. Its 'moral' value is not automatic, but depends on conformity to the moral law to which it, like every other form of human behavior, must e subject: in other words, its morality depends on the morality of the ends which it pursues and of the means which it employs. If today we see an almost universal consensus with regard to the value of democracy, this is to be considered a positive 'sign of the times,' as the Church's Magisterium has frequently noted. But the value of democracy stands or falls with the values which it embodies and promotes. Of course, values such as the dignity of every human person, respect for inviolable and inalienable human rights, and the adoption of the 'common good' as the end and criterion regulating political life are certainly fundamental and not to be ignored.

The basis of these values cannot be provisional and changeable 'majority' opinions, but only the acknowledgement of an objective moral law which, as the 'natural law' written in the human heart, is the obligatory point of reference for civil law itself. If, as a result of a tragic obscuring of the collective conscience, an attitude of skepticism were to succeed in bringing into question even the fundamental principles of the moral law, the democratic system itself would be shaken in its foundations and would be reduced to a mere mechanism for regulating different and opposing interests on a purely empirical basis." (EV, 70).

This point is not understood by professor Robert Frakes of the History Department at Clarion University. In an article entitled, "Why the Romans Are Important in the Debate About Gay Marriage," professor Frakes writes:

"Continuing legislative measures attempting to ban gay marriage show that this issue, so critical in our last national election, remains a controversial topic. Since many of our political institutions are derived from ancient Roman precedents, a quick look at Roman laws regarding homosexuality serves to illustrate what may be driving some of the current controversy surrounding gay unions in the United States.

While the world of the ancient Greeks seems to have tolerated homosexuality (as seen in the poems of Sappho and the dialogues of Plato), that of the Romans was more cautious. Romans in the period of the Roman Republic and early empire tended to perceive the Greek acceptance of male homosexuality as less than male and, thus, literally unvirtuous (Vir being the Latin word for man). Indeed, a Roman term for effeminacy was “Graeculus”—“a little Greek!”

The earliest Roman law regarding homosexuality appears to have been the Lex Scantinia that was passed by the Roman assembly at some point in the Roman Republic (perhaps in the second century BC). Although the text of this law itself has not survived, later Roman jurists of the second and third century AD describe how it outlawed the homosexual rape of young male Roman citizens. Consensual male or female homosexual unions apparently were not legislated against. Although there is scholarly debate, Roman literature of the republic and early empire suggests that men who engaged in consensual liaisons were often mocked as unmanly, but consensual homosexual sex itself was not illegal.

This would change in the later Roman Empire. While the first three centuries of the empire saw no legislation as far as we can tell regarding homosexuality, aside from the continuation of the Lex Scantinia as marked by its citation by the Roman jurists, in the fourth century there would be dramatic new laws condemning male homosexuality. Most scholars interpret a convoluted law from the year 342 AD surviving in both the Theodosian Code and the Code of Justinian as a decree from the emperors Constantius II and Constans that marriage based on unnatural sex should be punished meticulously. Although Constans himself was later denounced as having male lovers, this trend of the emperors in condemning male homosexuality in laws would continue. In a law of 390, surviving in the Theodosian Code and the Lex Dei (‘Law of God’), the emperors Valentinian, Theodosius, and Arcadius ordained that any man taking the role of a woman in sex would be publicly burned to death.

These laws certainly demonstrate a change from the Roman Republic where, to be sure, homosexual rape of male citizens was condemned but consensual homosexual sex was tolerated, even if sometimes mocked. Why did this change occur? The answer is fairly straightforward and lies ultimately in the results of the actions of the famous Roman emperor Constantine. In 312, this father of the emperors Constantius II and Constans had reached out to Christianity as the basis for his authority. Throughout the next 25 years of his reign, Constantine supported Christianity and gave financial help to the Church and legal sanction to some of the bishops’ powers. As his sons came of age in an increasingly Christian society, they and many of their advisors would have grown up with Biblical strictures. Thus, the pronouncements of the Book of Leviticus (18. 22, 20. 13) against male homosexuality as an abomination punishable by death in God’s eyes would logically have influenced writers of imperial law. Such strictures were reinforced in the New Testament (Romans 1. 24-27). So, it would appear that the growing influence of the Bible in an increasingly Christian Roman empire led emperors to condemn homosexual unions.

When we look at the current attempts in the United States to ban homosexual marriage, we must clarify what the premises for such measures are. If the drive to stop homosexual marriage ultimately derives from the Hebrew Bible, and its acceptance as religious truth by Christians, would not laws banning homosexual marriage be thus derived from religion? If so, such new legislation may well be an attempt to break down the “Wall of Separation” between Church and State that Thomas Jefferson described as an integral aspect of American government." (Source: ).

What shall we make of this? Well, professor Frakes' argument fails to take into account the fact that the Natural Law predates Christianity. For example, fifty years before the birth of Christ, the Roman barrister and statesman Cicero declared that:

"right is based, not upon men’s opinions, but upon Nature. This fact will immediately be plain if you once get a clear conception of man’s fellowship and union with his fellow-men. For no single thing is so like another, so exactly its counterpart, as all of us are to one another…And so, however we may define man, a single definition will apply to all.” [Laws I x 28-30]

Cicero goes on later to draw two conclusions of critical importance, namely that laws exist for the common good, and laws that deny fundamental human rights are not valid laws at all: “It is agreed, of course, that laws were invented for the safety of citizens, the preservation of States, and the tranquillity and happiness of human life, and that those who first put statutes of this kind in force convinced their people that it was their intention to write down and put into effect such rules as, once accepted and adopted, would make possible for them an honourable and happy life; and when such rules were drawn up and put in force, it is clear that men called them ‘laws’. It may thus be clear that in the very definition of the term ‘law’ there inheres the idea and principle of choosing what is just and true.”

Therefore, the drive to stop homosexual "marriage" is not rooted solely in "the Hebrew Bible and its acceptance as religious truth by Christians." It is also rooted in the Natural Law (which may be known through the use of reason alone and without reference to the "Hebrew Bible"), a law which, according to Cicero (and a multitude of ancient philosophers), "is based not upon men's opinions, but upon Nature." And this Natural Law teaches us what is "just and true."

Paul Anthony Melanson

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