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To work for the proper implementation of canon law is to play an extraordinarily constructive role in continuing the redemptive mission of Christ. Pope John Paul II |
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Resolution 1152 x 864 |
Updated 3 jan 2013 |
Review of Joseph Costanzo, Political and Legal Studies, 2 vols., (Christopher, 1982), 471 pp. |
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Edward Peters, Review of J. Costanzo, Political and Legal Studies, 2 vols., (1982), in American Journal of Jurisprudence 28 (1983) 240-248.
Costanzo
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From the great 16th-century thought of Suarez and Vasquez, to the influential 20th-century works of John Courtney Murray, Jesuit scholarship has made a significant contribution to jurisprudence.[1] Yet, it seems that of this important body of writing, only the most recent, i.e. that of Murray, still commands much attention in the literature .[2] This neglect and ignorance of other Jesuit legal scholarship is a result of, it seems, the same factors which have led to neglect and ignorance of Catholic and traditional thought generally: a post Vatican II fascination with the modern, and a nearly complete disregard for any earlier scholarship. Thus John Courtney Murray, the bulk of whose jurisprudential writing appeared after II Vatican is frequently regarded as something of a founder of Jesuit legal studies, while his nearcontemporary, Joseph F. Costanzo, whose most important legal writing appeared just before II Vatican, is little noted in legal circles .[3] The publication, however, of Costanzo's masterly two-volume Political and Legal Studies is destined, I suggest, to accord him his deserved status as one of the finest Jesuit jurisprudents. The breadth of legal scholarship encompassed in these two volumes is hardly paralleled. Students of legal history will be indebted to Costanzo for the superb five-part series in Politeia depicting the crucial influence of Christianity on the development of Western lego-political thought .[4] Augustinian scholars have three articles on the legal thought of the greatest of the Western Fathers .[5] Other Politeia studies include an examination of Dante's De Monarchia[6] and a critique of Kant's political principles.[7] Only after this thorough historical and theoretical preparation does Costanzo turn, in Studies in American Constitutional Law, to more contemporary considerations. Costanzo opens with a valuable introduction to the religious roots of American democracy[8] and gives special attention to the separation of church and state arguments as applied to public education.[9] Another installment reviews the role of conscience and academic freedom in both the academy and the city.[10] Finally, Costanzo examines the individual's response to war and peace questions.[11] As historian, Costanzo identifies
at the outset of his work the advantage of studying the political and juridical
institutions of society as opposed to considering, for example, its art,
literature, or philosophy. "These latter indicies of national
individuality," writes Costanzo, are generally the articulations of
the numerically few, of schools, and of the elite who speak either for
themselves or as interpreters of a national experience . . . The political and
juridical institutions, on the other hand, are wider and deeper in their
significance and meaning because they issue from a confluence of larger and more
numerical factors.[12] Costanzo relates in a splendid
opening essay the definitive achievements of Greco-Roman political theory and
practice. But it is Costanzo's claim, which he develops and defends in his next
four essays, that the fundamentals of modern political theory and practice owe
their accession, not to pagan, but to Christian-specifically, Catholic-thought.
In particular, Costanzo traces three themes: the two related notions of
political equality and consent of the governed, and, somewhat later, the
development of representative government. The
specific equality of men, [explains
Costanzo], was first definitively known when Our Divine Lord taught the
inviolable and transcendent right of man to attain eternal beatitude, and
revealed the universal salvific will of God. This principle of equality, expressed
as an equality in the adopted sonship of God, together with the Pauline dogma
that "all power descends from God" constituted the greatest
liberalizing force in the political world.[13] It was Augustine's notion of political equality--not to be
confused with the various sociological interpretations appended to this
misunderstood concept--which was both a necessary precursor to, and an
inexorable instigator of, a valid
rationale for the consent of the governed. Briefly, only political equals should
have the right to grant or withhold consent to political control; and, to seek
the consent of those recognized as politically unequal renders superfluous, even
a mockery, the process of requiring consent of equals at all. Augustine's theory of equality and consent was not simply an expansion of
limited pagan experiments with political equality. There was a difference in
kind involved as well-that difference was the Natural Law.[14]
Augustine recognized that valid governmental authority requires more than
the consent of the governed; it must also be in accord with the dictates of
Natural Law. Although many centuries will pass before the development of
institutions capable of protecting the political equality of men and securing
their consent, the foundations for such development were laid by Augustine. It
was the task of his followers to give material and practical substance to his
ideas.
Beginning with St. Isidore of Seville[15],
sustained by Jonas of Orleans[16],
and reaching a new plateau with Hinemar of Rheims[17],
the ideas of equality and consent developed to the crucial point of binding
ruler
and ruled alike.[18]
In the writings of Hincmar, Costanzo discerns, in fact, "the first summary
presentation of the fundamental principles of government according to constitutional
limitation."[19]
Just how quickly and cogently the Christian concepts of equality, consent, and
the due
process
of Natural Law were taken up is demonstrated by the following excerpts: The royal power, like the whole of the people is bound to respect the laws . . . We decree that no king shall by any means, extort, or cause to be extorted, any documents whatever in acknowledgment of any debt, whereby any person can unjustly and without his consent, be deprived of his property . . . No one has a right to hear a cause which is not authorized by the laws . . .
The judge, when inquired of by a Party, should be able to give a reason
for his decision.
The foregoing are
not excerpts from the Constitution,
or
even Magna Charta; they are
provisions from the Law of the
Visigoths, promulgated in 653.[20]
Costanzo names the Law
as
the `first Christian Constitution."[21] Before examining the rise of representational government, Costanzo turns
to the question of why the Catholic tradition of common-law--which was
developing both in England and
on
the Continent--succumbed on the Continent
to the reassertion of Roman civil law jurisprudence .[22]
Costanzo suggests that, while there was nothing finally incompatible between
Christian unity and strong nationalism, continental legalists perceived such
incompatibility. In any event, the nascent continental common-law tradition was
dealt four blows from which it never recovered.
In France, royal legalists turned directly to Roman
law and its dominant voluntarism, as it afforded them the simplest defense of
the King's will being accepted as law, regardless on the content of that will.[23]
In addition,
Averroistic Aristotelianism worked to sever the guiding principles of Natural
Law from the King's deliberations in forming his laws. In Italy, the publication
of Defensor Pacis
by Marsiglio of Padua broke new ground for the legal
positivist school, again cutting the ties which bound human law to Natural Law
.[24]
The third blow to the establishment of a common-law
tradition on the Continent came in the German Protestant Revolt, as Costanzo
shows:
By substituting the invisible universal priesthood
for the Orders of the Catholic Church, and by establishing the prince, as one
holding by preeminence of his divine power and sacred right to rule, the highest
powers of the episcopate, Luther restored to the state the sacred rights of the
ancient pagan cities . . . By rejecting the independence of an institutional
spiritual power, the Catholic Church, Luther removed one of the most effective
checks upon arbitrary state rule
.[25]
Finally, and perhaps most significantly, Machiavelli,
in The Prince,
presented
only part of human nature. Costanzo corrects:
The nature of man adequately studied is that which a
man is meant to be, and the nature of political society is that rational and
moral end which is a spiritual achievement, not a "natural fact". Only
as we know what society should be, and may be, can we wisely criticize the
present or future plan, and draw lessons of profit from the past . . .
Machiavelli was neither in the Christian tradition nor within the best pagan
tradition. Paganism never suppressed the voice of morality and its aspirations
for ideals .[26] Startling as the proposition may seem, it is suggested that nowhere has the lego-political influence of the Church been more evident that in the rise of representational government, at least of the Anglo-American type. Costanzo's account of this subject, though it is sure to set him at odds with many accepted canons of liberal orthodoxy, is, in a word, magnificent .[27] "The more closely modern scholarship scrutinizes our medieval heritage," observes Costanzo, "the more frequent are the admissions of the vast indebtedness of modern political and civil liberties to the ecclesiastical influence and direction of medieval social and political history. "[28] But, in an age knowing only splintered Christian unity, and racked with a flat disbelief of a distinctly modernist taint, a question readily presents itself: How may the Church--of all institutions!--lay claim to the intellectual and practical development of representational government? Costanzo's answer comes in two parts. First, moderns have only a hazy
notion of the influence of the Catholic Church in daily medieval life. Yet,
"[f]or centuries the Catholic Church gave to Western Europe a culture
common to royal courts, to universities, and to monasteries," notes
Costanzo; "Divine in its establishment, the Catholic Church was the most
tangible temporal institution in existence, and its immersion in private lives
and public offices was but a historic response to St. Paul's
Romanus
sum. "[29] Second, the Church was possessed
of direct practical experience in representational government. From her earliest
days, she had experimented with the communal life; as in medieval Spain, and
finally in Dominican England, the Church had long conducted a substantial body
of her affairs--as distinct from her teachings--under the maxim
quod
omnes tangit ab omnibus approbetur.[30]
Innocent III in the Fourth Lateran Council (1215), the Councils of
Lyons (1245 and 1274), the Council of Bourges (1225) and Stephan Langton in
1226, all contributed to the development of representational theory and
practice, and all drew upon the advanced notions of equality and consent as
initiated by Augustine.[31]
Concludes Costanzo (who had earlier acknowledged the ancient pagan roots of
vicarious action as a condition precedent to representational government[32]).
"[T]he originality of representative governance is Catholic, papal in
promotion, religious in precedent and experience, [and] ecclesiastical in the
synodal convocations. Its growth in ecclesiastical and civil circles was
mutually compenetrant . ,
."[33] Despite the greater perduring value of Politeia, it is likely that the second volume of Costanzo's Political and Legal Studies, Studies in American Constitutional Law, will attract greater attention .[34] In light of this anticipated discussion, only a few general observations on Studies will be drawn here. The first and longest section of
Studies,
as indicated by the title of its opening essay, discusses the
religious heritage of American democracy. That democracy, argues Costanzo in his
central theme, is utterly dependent upon religious ideals for survival.
The
more frequently we study the Declaration of Independence, the more deeply we
appreciate its profound theological and philosophical presuppositions. The
Preamble is a public official confession of the all-inclusive comprehension of
the divine moral order over the consciences and affairs of men and nations.[35]
It
is interesting to compare Costanzo's reflective reading of the Declaration to
that prevalent in the movement most clearly setting itself at odds with the
ideals of the Declaration, the feticide movement
.[36]
When
it is suggested by a right-to-life advocate that there may be some importance to
the fact that the Declaration explicitly affirms the right to life, proponents
of feticide reply pithily that the Declaration is not law. And, I suggest,
Costanzo would agree; the Declaration is not law in the sense of lex, for
it is much more than that. The Declaration reflects law as jus and
summarizes--as do most other political and juridical institutions, as Costanzo
pointed out earlier
[37]--the
sentiment of the people, the basis of the body politic, the norms to which human
law must aim. It is thus, in fact, the judicial and statutory law permitting
feticide which must be criticized, not the Declaration.
This
nation and its laws, based within the Christian tradition, has too many examples
of official dependence on that tradition to bear repeating here
.[38]
Actually what must be underscored is
the frightful severance of American jurisprudence from that tradition in an
almost unbelievably short period of time. "There is scarcely anything in
our legal system," Costanzo could write in 1955, "offensive to
Christianity . . ."[39]
But consider the ascendancy of secularism[40]--bringing
with it feticide[41], infanticide[42], and euthanasia[43],
the establishment of contraception as
official governmental policy[44],
the prohibition of prayer in public schools[45],
and the chilling effects of tax policy against private education[46],
the recognition of simple state
procedures as sufficient for marriage[47],
and the establishment of near divorce at will[48],
to name but a few examples, almost all of which are less than a generation in
appearance--consider this ascendency of secularism to Costanzo's insight on this
most un-Christian and un-American ethic, penned less than 30 years ago:
Far
are we from denying the secularistic stream in American history; but we do deny
their claim that it is the only American tradition; what is more we deny it is
the original American tradition; much less is it the prevailing one and
certainly not the genuine and authentic one. In the light of the historical
record, the secularist claim is wholly alien to the American mind and as such
continues a dissent and protestation .[49]
Echoes again, "The
World Turned Upside Down."
I
am loath to call any book "must reading". Somehow, the world survived
before its publication, and it will survive after it goes out of print. Besides,
how many so-called "must-reads" now lay gathering dust on forgotten
bookshelves? Still, it would be difficult to recommend too highly Joseph
Costanzo's
Political and Legal Studies. It
is extensively researched and documented, erudite in content, and graceful in
style. With due deference to dangers of calling a book "must-read",
this may be said: Costanzo's Political and
Legal Studies is especially well-drafted for use as a primary text in
graduate legal and political studies. The serious student of the history of law
and politics should not be able to ignore this latest addition to Jesuit
jurisprudence. Notes
[1] Fransiscus
Suarez (1548-1617) was perhaps the leading Jesuit legal thinker of the
16th-century, noted especially for his
Tractatus de legibut ac Deo legislatore
(1611).
See generally, B. Brown, The
Natural Law Reader 94-96 (1960); A.-H.
Chroust,
A Summary of the Main Achievements of the Spanish
Jurist-Theologians in the History of Jurisprudence,"
26
Am.
1. Juris. 112,
118 et
seq.; H.
Rommen,
"The
Natural Law in the Renaissance Period," Natural Law Institute
Proceedings, Volume
1189, 91
et
seq. (1948);
A. D'Entreves,
Natural
Law 71 et seq. (2nd
Ed. 1970); and J. Eppstein,
The Catholic Tradition of the Law of Nations
98
et
seq. (1935).
Gabriel Vasquez (1551-1604) is
credited with much foundation work for Grotius,
de
lure Belli et Pacis. See
Eppstein,
supra
at
99.
Robert Bellermine (1542-1621) also deserves note for his
contribution to this second flowering of Scholastic jurisprudence. See
Rommen, supra at 99, as well as J. Rommen,
The Natural Law 40,
60,
67 (1947). John Courtney Murray published his magnus opus, We Hold These Truths in 1960. Of course, several contemporary Jesuits should be noted for their significant contributions to law and law-related topics, including Thomas Davitt (an advisor to this journal) Donald Keefe (law and religion) and Paul Quay (medical-legal ethics). [2] A welcome exception to this is D. Burton, "Justice Holmes and the Jesuits," 27 Am. J. Juris. 32 (1982). [3] As noted above (fn. 1) Murray published We Hold These Truths in 1960, just as II Vatican opened. This, coupled with Murray's pivotal role in the development of the Council's controversial Dignitatis Humanae (Declaration on Religious Liberty) contributed to his prominence in most discussions of Jesuits and the law. Joseph Costanzo, on the other hand, published his leading jurisprudential works before 11 Vatican. This same unwarranted objection to modern recognition may be found in the works of, for example, Francis Lucey, John Ford, and Paul Gregg. See Burton, supra, fn. l, passim. [4] See J. Costanzo, The Greco-Roman Politeia, in Costanzo, Political and Legal Studies (Volume I, Politeia) (hereinafter, Politeia 1-40) (1982); Christian Politeia 1, Politeia 41-110; Christian Politeia II, Politeia 111-162; Juridic Origins of Representa tion I, Politeia 163-190; and, Juridic Origins of Representation II, Politeia 191-221. [5] See Costanzo, Il Principio Agostiniano di Egualita, Politeia 231-242; La Dottrina Agostiniana Sull 'Integrita della Natura Umana, Politeia 243-254; and, justice in St. Augustine's Definition of the State, Politeia 255-270. [6] Costanzo, The "De Monarchia" of Dante Alighieri, Politeia 297-336. [7] Costanzo, A Critique of Immanuel Kant's Principles of Politics, Politeia 337-349. [8] Costanzo, Religious Heritage of American Democracy, in Costanzo, Political and Legal Studies (Volume II, Studies in American Constitutional Law) (hereinafter, Studies) 1-22 (1982). [9] Costanzo, Jefferson, Religious Education and Public Law, Studies 99-132; Federal Aid to Education and Religious Liberty, Studies 99-132; Federal Aid to Education and Religious Liberty, Studies 133-186; Religious Schools and Secular Subjects, Studies 187-258; Prayer in Public Schools, Studies 259-274; and, Wholesome Neutrality: Law and Education, Studies 275-335. [10] Costanzo, Academic Freedom and the Intellectual, Studies 337-352; The Academy and the City, Studies 353-368; and Public Law and the University Campus, Studies 383-388. [11] Costanzo, Pacifism is not Peace, Studies 389-398; and Conscription and the Conscientious Objector, Studies 399-466. (Note: The articles listed in footnotes 4-11, supra, are not exhaustive either of Costanzo's works collected in the present twovolume set, or his publications generally.) [12] Politeia 1. [13] Ibid. at 56 (original emphasis). [14] Ibid. at 57. [15] Ibid. at 68. [16] Ibid. at 71. [17] Ibid. at 72. [18] Ibid. at 73. [19] Id. [20] Ibid. at 77. [21] Ibid. at 75 (original emphasis). [22] Ibid. at 111 et seq. Costanzo's excellent account of the survival of the common-law tradition in England is found at Politeia 128-137. [23] Ibid. at 115-116. [24] Ibid. at 117-119. [25] Ibid. at 120. [26] Ibid. at 125, 128. [27] Ibid. at 137-142. See also, ibid. at 163-220, passim. [28] Ibid. at 198. [29] Ibid. at 183. [30] Ibid. at 184, 186-188, 198. [31] Ibid. at 185-188, 192-198. [32] Ibid. at 176, 202. [33] Ibid. at 202, (footnote omitted). [34] Fellowship of Catholic Scholars Newsletter, (Sept. 1982) p.22: "This latter volume has a special relevance to the present American scene." See also, M. Murphy, Fitting Tribute, Christian Order (Aug./Sept. 1982) p. 442, 447, reviewing Costanzo, Political and Legal Studies. [35] Studies 4. [36] In common parlance, feticide is generally, but quite inaccurately referred to as "abortion". For reasons which we shall not here explore, the misleading term "abortion" is dropped in favor of the more descriptive "feticide." See E. Peters, Is It Really Abortion?, 73 Social Justice Review (Jan./Feb. 1982) p. 24. [37] See fn.12, supra, and accompanying text. [38] An interesting exercise in this regard would be to review the Inaugural Addresses of almost every President. George Washington: "[T]he propitious smiles of Heaven can never be expected on a nation that disregards the eternal rules of order and right which Heaven itself has ordained . . ." Calvin Coolidge: "[America] cherishes no purpose save to merit the favor of Almighty God." Dwight Eisenhower opened his First Inaugural Address with a prayer three paragraphs in length. Of course, Costanzo includes several examples of this public dependence upon God in his work. [39] Studies 17. [40] See Torcaso v. Watkins, 367 U.S. 488 (1961) recognizing Secular Humanism as a "religions". See generally, C. Rice, Beyond Abortion: The Theory and Practice of the Secular State (1979) (hereinafter, Beyond Abortion); J. Hitchcock, What Is Secular Humanism? (1982); and, O. McGraw, Secular Humanism and the Schools (1977). [41] Roe v. Wade, 410 U.S. 113 (1973); Doe v. Bolton 410 U.S. 179 (1973). But see, R. Reagan, "Abortion and the Conscience of the Nation", 9 Human Life Review (Spring 1983) 7-16; and generally J. Noonan, A Private Choice: Abortion in America in the Seventies (1979). [42] See Infanticide and the Handicapped Newborn (Horan and Delahoyde, Eds.) (1982); and E. Quay, And Now Infanticide (2nd Ed., 1980). The deliberate starvation death of a handicapped child in Bloomington, Indiana--with the approval of that State's highest court--is well known. [43] See Death, Dying, and Euthanasia (Horan and Mall, Eds. 1980); Related to this is the "Death With Dignity" movement and so-called "Living Wills". See P. Ramsey, Ethics at the Edges of Life 318-332 (1978) and D. Horan and T. Marzen, Death With Dignity and The "Living Will": A Commentary on Legislative Developments, (A.U.L. Studies in Law and Medicine, No. 4, 197 ). Also criticized in this light are provisions of the Uniform Anatomical Gift Act which create personal rights in the body of another. See J. Krauskopf, Advocacy For the Aging 538-539 (1983). [44] See Beyond Abortion, supra, fn.40, at 133-134. [45] See Engel v. Vitale, 370 U.S. 421 (1962); Abington School District v. Schempp, 374 U.S. 203 (1963). [46] See D. McGarry, "The Unconstitutionality of Exclusive Governmental Support of Entirely Secularistic Education", 28 Catholic Lawyer 1, (1983); D. Young and S. Tigges, "Federal Tuition Tax Credits and the Establishment Clause: A Constitutional Analysis", 28 Catholic Lawyer 35 (1983). [47] "The State is entitled to regulate the purely civil legal consequences of the contract of marriage . . . To the extent that the State's legislation and administration of justice invades the jurisdiction of the Church, the Church cannot recognize their validity." L. Ott, Fundamentals of Catholic Dogma 469 (1960). [48] "Quite suddenly, divorce became the reality in many states and countries. Centuries of ingrained tradition were thrown overboard by abrupt reforms, sometimes with thought, often simply on a 'follow-the-leader' basis." H. Krause, Family Law 783 (1976). By 1977, only three states (Illinois, Pennsylvania, and South Dakota) restricted divorce to "fault" grounds only. H. Krause, Family Law 159 (Supp. 1978). Of course, divorce, or the breaking of a marriage bond--as distinct from annulment, or the recognizing that a purported bond never existed--is not recognized by the Church, fault or no. [49] Studies 12.
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Another review
The original version of this review appeared in Reflections |
The disgraceful antics of the Berrigan brothers, the muddled thinking of Robert Drinan, and the dubious involvement of clergy in the repressive Nicaraguan regime, have combined with other factors to leave Catholics in America rather cool to the political and legal thought of clerics. It is only recently that the works of, for example, James Schall, have begun to balance the impressions left by 25 years of mental hip-shooting by liberal clerical political pundits.
Throughout the last quarter century, nevertheless, the work of the Church has, of course, gone on; an always important part of this work has been scholarship. The recent publication of Joseph F. Costanzo’s masterly two-volume work, Political and Legal Studies, is a splendid tribute not only to the Church whose constructive influence on politics and law has been so crucial.
For over 30 years, Costanzo has lectured and written on jurisprudence, with a greater part of that time being spent at Fordham University. In commemoration on his Golden Jubilee in the Society of Jesus, relatives, friends, and former students have gathered nearly 30 of his finest essays into this cohesive, erudite, and valuable collection.
As one moves through the theoretical and historical Politeia, and into the analytical and reflective Studies in American Constitutional Law, a question quickly appears: How is it that such solid scholarship has so failed to attract its deserved attention?
It is not enough to answer that the greater part of Costanzo’s work was published in the pages of the law school reviews, where few but overworked law students would happen upon it. There is another, more serious, obstacle laying in the way to recognition of Costanzo’s work by a modernist intelligentsia: Costanzo has a deep understanding and appreciation of the past.
It would likely come as a surprise to purveyors of the various equality myths that the genuine notions of political equality owe their development to St. Augustine. Costanzo, however, explains that St. Augustine rooted his idea of equality in our Lord’s definitive teaching that all men were created to share in the beatific vision. Thus do theological ideas frequently bear political consequences.
Costanzo’s narration of Church influence on the development of Western jurisprudence – especially on the question surrounding consent of the governed, the rise of representational government, and the growing content of the Natural Law – is among the finest ever published. Moreover, this same careful research and animated insight is applied by Costanzo in his examination of American law. Here Costanzo reviews at length the religious heritage of American government, and pronounces the American body politic utterly dependent upon religious ideals for survival. His study of federal aid for private education is augmented by repeated exposure of the intellectual dishonesty practiced by many so-called “separationists” in their highly selective quotations of Jefferson and others. Costanzo also considers the rights and responsibilities of academic freedom, and the told of conscientious objection in society.
Although Costanzo has by no means written beyond the ken of the normally intelligent reader, this work is probably most useful to the student and academician. The formidable content is supplemented by footnotes frequently encyclopedic in scope, and four Politeia essays are in Italian. Indeed, one small gauge, I suggest, of the recovery in Catholic higher education may well be the speed with which this superb study is added to the required reading lists of graduate students in politics and law.
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