In many different circumstances over the course of his pontificate,. Pope Benedict XVI addressed a much broader community than that made up only of ...
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R E A L I T Y AND TRANSCENDENCE
More Than a Religious Issue Armin von Bogdandy and Sergio Dellavalle
I n many different circumstances over the course o f his pontificate, Pope Benedict X V I addressed a m u c h broader community than that made up only o f CathoHc-Christian believers. I n doing so, he dealt w i t h topics that are equally important to the Roman CathoHc faithful, to nonbelievers, and to believers i n other religions, including the relationships between faith and reason, science and ethics, formai legality and substantive legitimacy, and naturai reason and individuai rights. I n the speeches reproduced herein, these topics were presented (first to specific audiences i n their respective venues, and later to the general public) w i t h scholarly acumen, b u t also w i t h an ability to go beyond the frontiers o f theology. T h i s Benedict d i d w i t h the conviction o f faith, but no less w i t h the desire to arouse interest and debate even
among
those whose
reflections
are
not habitually o f a
religious bent. Joyfully accepting the proposai o f dialogue, i n the following pages we w i l l discuss certain points that Benedict touched o n i n his speeches - i n particular those points that most correspond to our backgrounds as legai philosophers. We will begin by attempting to reconstruct Benedict's statements that most directiy address issues o f a philosophical and legai nature, tying them into what seems to us to be a criticai diagnosis o f the excessive positivity - or positivism - o f the contemporary w o r l d . '
^ The term "positivity" is used here as it was used by Hegel in many of his early Works. In that context, it is employed negatively, to indicate rigid adherence to a reahty, be it material or cultural, that is "positive" in the sense that it is taken as given, immutable, charged with an incontrovertible authority, 33
Pope Benedict X V P s Legai Thought
34
Reality and Transcendence
35
We will then outline the proposed cure that emerges from Benedict's
Against such a constricted cognitive and normative view, Benedict
speeches, which repeatedly focus on the necessity for a renewed
repeatedly emphasizes the centrality o f interpretation i n approaching
osmosis between faith and reason. W e will conclude by presenting
the Scriptures,^ Although he only stresses the fiindamental import-
our perspective, which, while sharing i n a good number o f Benedict's
ance o f interpretation i n reference to biblical exegesis, i t is not a
critiques o f certain distortions i n contemporary culture, nevertheless
stretch to extend its application to the other discipline that constantly
ends i n a different proposai, i n which reason and faith, while main-
and inevitably hangs i n the balance between the authority of a written
taining dialogue, remain ontologically, epistemologically, and axiolo-
text and the need to interpret i t , namely the law. Therefore, leaving
gically distinct.
behind textualism - the already epistemologically doomed attempt to interpret a written text literally - the real understanding o f what is given to US as positive m i e and n o r m (that is, given through the
THE DIAGNOSIS: A CRITIQUE OF THE P O S I T I V I T Y OF THE CONTEMPORARY WORLD
m e d i u m o f the written language) requires the involvement not only of the intellect, but also o f love - o f that agape that refers to the paramount
Benedict focuses his criticai attention o n certain aspects o f contemporary culture which he views - even i f he never explicitly uses the term - as akin to authentic pathologies.
importance o f communication w i t h i n the
epistemic
community, be i t legai or religious. F r o m this critique o f positivity and from the importance o f interpretation Benedict derives a series o f reflections and admonitions that
T h e first o f these is the disconnect between naturai science and
deal w i t h faith, ethics, law, and politics. First o f ali, he clearly dis-
ethics. T h e field o f scientific knowledge is separated from that o f
tances himself from the usuai solipsism i n issues o f faith and ethics:
ethical reflection to the extent that nature is reduced to a collection
it is not enough that each o f us, alone and independent o f any contact
of objective data united by a causai relationship.^ This is the d o m i n -
w i t h other i n d i v i d u a i , constructs his or her own idea o f the meaning
ant, value-neutral positivism o f contemporary science, which, i n
of the biblical text, or o f how he or she should behave i n a given
Benedict's view, corresponds to legai positivism (not by accident, he
situation. I n order to obtain valid results i n both cases i t is necessary
uses Hans Kelsen as the criticai point o f reference for b o t h positions).
to refer to the community o f our peers and to share w i t h them the
For both, scientific and legai positivism, only knowledge that reflects
results o f our inquiry.'*
the positivity o f reality can be regarded as true, and only judgments
Just as it is cruciai to overcome
the mere
"textuality" o f
that refrain from ethical considerations are rationally grounded and
the Scriptures, or o f ethical codes o f conduct, i n favor o f an interpret-
legally legitimate.
ation that involves the wider context o f community, rights too, i n their juridical dimension, should not be understood in a merely
indifferent to the dialectic and communicative complexity of the lifeworld, and impenetrable by the quest for what is "other" and "yet to come," that is, to what we cali "transcendence." See G.W.F. Hegel, Friihe Schriften (Early Writings), in Id., Werke in zwanzig Bànden (Work in twenty volumes), Suhrkamp: Frankfurt am Main 1970 sgg., voi. I. Keeping in mind this defìnition of positivity, positivism is the doctrine which limits scientific knowledge to the study - in various disciplines - of "positive" reality, wdthout leaving space for any dialectic with counter-factual rationalities. ^ Pope Benedict XVI, "The Listening Heart: Reflections on the Foundations of Law," Visit to the Bundestag, Reichstag Building, Berlin, September 22, 2011.
legalistic sense.^ Only interpretation can p u t them into proper
^ Pope Benedict XVI, Meeting with Representatives from the World of Culture, Collège des Bemardins, Paris, September 12, 2008. * Pope Benedict XVI, "Faith, Reason and the University: Memories and Reflections," Meeting with the representatives of science, Aula Magna of the University of Regensburg, Regensburg, September 12, 2006. ^ Pope Benedict XVI, Meeting with the Members of the General Assembly of the United Nations Organization, New York, Aprii 18, 2008.
Pope Benedict X V I ' s Legai Thought
36
Reality and Transcendence
37
relationship w i t h their deeper rationale, w i t h their underlying logos,
politicai, and legai worlds - that is, according to Benedict, from
and w i t h the naturai reason that makes up their most basic justifica-
the dominant contemporary reading o f them - can be traced back
tion. I f separated from naturai reason and read only according to
to the fundamental
textual positivism, rights r u n the risk o f undergoing two distortions
the rejection o f transcendence. Indeed, only openness to tran-
defect
gripping our society and
thought:
of meaning that would seriously impoverish their content. First, they
scendence allows US to overcome the positivity o f the material
can be read, through a relativistic lens, not as necessary results o f
w o r l d , basing science, politics, and law on just and ethical founda-
reason i n its universalistic scope, but rather as products o f a historical
tions. I g n o r i n g transcendence, Benedict points out, leads to the
contingency that renders them different according to the cultural
violation o f h u m a n liberty and dignity and, ultimately, to the most
or religious context i n which they are to be applied.^ T h e second
abominable crimes against humanity. W h a t the U n i t e d Nations
distortion is a purely legalistic idea o f rights, which attributes them
have been i n the fields o f law and intemational politics,
exclusively, and i n abstract form, to the individuai, w i t h o u t any
rediscovery o f transcendence has been i n the realm o f h u m a n
reference to the overall social and naturai equilibrium. This distortion
consciousness: b o t h respond to the one-dimensionahty o f positiv-
favors the delirium o f individuai omnipotence: that hybris that can
ity, emphasizing the need to cast h u m a n horizons toward principles
the
lead one to the wrong belief that anything is permissible and there
and dimensions that transcend the "reaUstic"^^ logie o f power and
is no l i m i t to his or her
worldliness.^^
freedom/
O n the politicai piane, the majority principle is a first expression
According to Benedict, the treasured awareness o f transcendence
of the positivistic approach that Benedict critiques. Albeit funda-
is best preserved i n the chest o f religion. Therefore, no antidote
mental and, i n general, sufficient to regniate most o f the issues
is stronger against the positivity o f the contemporary w o r l d than
associated w i t h civil coexistence i n a satisfactory way, the majority
religion and the intransigent defense o f its freedom. W i t h i n religious
principle nevertheless comes up short when faced w i t h the "funda-
fireedom - understood not just as the private freedom o f an i n d i v i d -
mental issues o f law, i n w h i c h the dignity o f m a n and o f humanity
uai or o f a group, but, above ali, as the freedom to give religion an
is at stake."^ M o r e generally - and here once again Kelsen serves
explicit public dimensione^ - we find the most sure guarantee o f
as a criticai p o i n t o f reference - the Pope Emeritus fundamentally
the protection o f h u m a n dignity and h u m a n rights.''*
critiques the conception according to w h i c h politics is understood as a collection o f formai rules o f interaction between members of a c o m m u n i t y characterized by plural, nonhomogeneous
ethical
views.^ I n Benedict's view, politicai and civil coexistence must be founded on ethical principles which, i n t u r n , are rooted i n more solid g r o u n d than mere "social c o n s e n s u s . " ^ ° A c c o r d i n g to this diagnosis, the many problems w h i c h seem to emerge from a merely positivistic reading o f the naturai, ethical,
^ Id. ^ Id. ^ Pope Benedict XVI, "The Listening Heart." ^ Pope Benedict XVI, Meeting with the Representatives of British Society, including the Diplomatic Corps, Politicians, Academics and Business Leaders, Westminster Hall, London, September 17, 2010. Id.
By "realistic" logie here we mean the logie found at the basis of human, social, politicai, and legai relationships, as they were viewed by Thucydides in antiquity and Machiavelli in early modem ages (to cite perhaps the two most important names). Under this interpretation, social interaction is guided by a single rationale, that is, the struggle for power. Accordingly, whoever acts following to a different kind of rationality, dialectically opposed to the mere logie of power in the name of values, principles, or shared rights, has abandoned "reality," revealing him- or herself to be, at best, deluded, and at worst, a fool. In this view there is no room for a theory of transcending the existent (unless it is self-destructive or hypocritical), either in the name of a nonstrategic rationality, or in the name of faith. Pope Benedict XVI, Meeting with the Members of the General Assembly of the United Nations Organization. Id. Id.
Pope Benedict X V F s Legai Thought
38
THE CURE: TOWARD A REASON NOT CUT OFF FROM F A I T H
Reality and Transcendence
39
Calvinist thinkers, is purchased at the high price o f distancing itself from G o d . ' ^ This is not so i n Catholic thought, where reason has always been seen as an indispensable tool for growing closer to G o d ,
What remedy can be identified against the troubling diagnosis o f the
and where a theory o f osmosis between faith and reason has generally
contemporary world's shortcomings, i n particular its positivity, that
prevailed, even while maintaining a scrupulous
is, its materialism, relativism, and its distance from the need for
differing degrees o f closeness to truth.
respect for the
transcendence? Benedict, i n his attempt to ondine an exit strategy,
I n this sense, the Pope Emeritus is ftiUy i n line with the prevalent
turns his attention to one o f the most thoroughly discussed topoi o f
Catholic tradition: "The Catholic tradition maintains that the object-
western thought: the relationship between faith and reason.
ive norms goveming right action are accessible to reason, prescinding
Ever since Paul o f Tarsus' famous words from the Letter to the
from the content o f revelation."^" I n other words, the ethical and
Romans^^ - and, more generally, following the introduction o f the
moral norms that protect human dignity can be grasped w i t h the help
stoic doctrine o f naturai r e a s o n i n t o nascent Christian philosophy
of reason alone, and therefore by any human being, including those
and theology - Christianity has worked to forge a positive and con-
who have not embraced the Christian message or adopted the doctrine
structive relationship between faith and reason. This is not to say that
of the Church. I n dealing with this topic, Benedict also addresses the
there have been no exceptions, b u t these have been largely on the
issue (a thomier one than most) o f whether G o d can act outside o f
Protestant side; i t sufifices to think o f M a r t i n Luther's defamation o f
what we define as reason, maybe even contrary to it, not bound by
reason as the "devil's greatest whore,"'^ or o f the more elegant, but
an5rthing but the own inscmtable preference; or whether he is instead
no less skeptical, Calvinist theological claim that through originai sin
part o f an "objective" reason that coincides w i t h his freedom and will
the human being has iost the ability to fiilly grasp G o d w i t h his reason
(not understood i n this case as radicai arbitrariness). The Pope Emeri-
alone, and is therefore limited to understanding only a particula o f
tus assumed a clear position i n responding to this question, and one
divine truth.^^ T h e
that is more radicai than i t appears from a superficial reading. H e
autonomy o f human
reason, according to
explicitly rejects the voluntarism of Duns Scotus, for w h o m G o d is free "For when the Gentiles who do not have the law by nature observe the prescriptions of the law, they are law for themselves even though they do not have the law. They show that the demands of the law are written in their hearts, while their conscience also bears witness." Romans 2:14-15. Regarding this it is worth recalling the defìnition of reason as described by Cicero: "There is a true law, a right reason, conformable to nature, universal, unchangeable, eternai, whose commands urge us to duty, and whose prohibitions restrain us from evil.... This law cannot be contradicted by any other law, and is not liable either to derogation or abrogation. Neither the senate nor the people can give us any dispensation for not obeying this universal law of justice" (Marcus TuUius Cicero, "Treatise on the Commonwealth," in Edmund Spettigue, Cicero, The Politicai Works, London 1841^2, Voi. 1, Book III). M. Luther, Werke: Kritische Gesamtausgabe (Works: Complete edition), Weimar: Bòhlau, 1914, voi. LI, 126. ^'^ A. Gentili, De jure belli libri tres (1612), Oxford: Clarendon Press, 1933, I, I, 10.
in a dimension that is beyond our reason, w i t h no bridge connecting the two spheres. I n that view, God's will is ultimately not rational, but arbitrary, to the point that he "could have done the opposite o f everything he has actually done."^* A t least implicidy, however, Benedict also distanced himself from the rationalism o f the most moderate scholastic stream o f thought, represented by Thomas Aquinas and, at least partially, by Francisco de Vitoria, according to which what we perceive as according to reason corresponds to the divine free will.^^
H. Grotius, De Jure Belli ac Pacis (1646), Buffalo, NY: William S. Hein & Co., 1995, 1, 1, X, 1-5, 4. Pope Benedict XVI, Meeting with the Representatives of British Society. Pope Benedict XVI, "Faith, Reason and the University." On this, see Vitoria's important passage, according to which "il diritto divino, anche quello positivo, ha la stessa forza del diritto naturale, poiché questo non
40
Pope Benedict X V I ' s Legai Thought
Under this understanding, G o d freely desires what we understand
41
Reality and Transcendence
moral principles. "^^ Benedict links the universal mission o f Christian-
as rational. Reason, however, remains ontologically and axiologically
ity
subordinate to the divine will i n that i t belongs only to our perceived
applicability and breadth o f the rational logos. ^'^
w o r l d and only binds us. Benedict, instead, assumes the most radic-
to the relatedness of Christian doctrine and the
universal
The assumption that an uninterrupted bridge unites faith and logos
ally rationalistic position that can be found i n Catholic theological
also has important consequences for the way i n which reason itself
thought. T h e approach was developed by the last and most " m o d e m "
is understood. I f faith is indeed revealed, and therefore must be
of the great members o f the School o f Salamanca, Francisco Suàrez.
accepted as a given t m t h , reason too, which is claimed to be onto-
For Suàrez rationality and the divine will coincide
the existence o f
logically and axiologically bound to i t , as well as the naturai law,
an "objective" reason is presupposed, representing the purest essence
which is based on reason, w i t h its laws valid for ali human beings,^*^
of the divine freedom and w i l l . God's will remains completely free^"*
ought to be understood as present in re,^^ that is, as objects to be
(obviously, one might add, i f one adopts the Christian perspective)
discovered i n the external reality. Reason and faith, therefore, would
but that freedom is coexistential w i t h reason, which is not merely
not be faculties that allow us, through free argumentation, to arrive at
perceived as such by us, but also is such i n God's very w i l l . Starting
a better understanding of the outside w o r l d and to correctly orient our
from
the most openly rationalistic positions i n Catholic theology,
actions. Joseph Ratzinger, before ascending to the papal seat, used the
Benedict stresses how the Catholic G o d is a logos G o d and not an
"objectivity" o f reason i n its essential relationship w i t h revelation^^
arbitrary G o d . Although there is m u c h more to God's love than to our
as the basis for his severe criticism o f relativistic rationalism, which
reason, the "eternai Creator Spirit" and our reason are analogous,
he saw as a Pilate-like rejection o f the search for tmth,^^ and not
and not substantially different.^^ What distinguishes them is a matter
as a tool for dialogue among different individuals or groups.
of nuance, and not o f opposition.
I f revelation is connected to the logos, then the keeper o f true
O n the basis o f these assumptions, Benedict defends Christian
revelation - at least what is considered as such - w i l l also be the
theology's Greek heritage^^ and the dose relationship between faith
keeper o f true reason. F r o m this premise derives the conviction o f
and logos}'^ Against this background, he identifies religion's task as
Catholic exceptionalism and o f the privileged position o f the Roman
the "'corrective' role," which consists o f helping "purify and shed
C h u r c h , not only concerning matters o f faith and theological t r u t h ,
light upon the application o f reason to the discovery o f objective
b u t also concerning rational t r u t h .
Benedict also, i n reference to
the social and politicai piane, insists on the fact that, according to Christian doctrine correctly interpreted, the t m t h entrusted to ha forza se non per il fatto che è stato stabilito dall'autorità divina. In caso contrario non sarebbe obbligatorio ... dal momento che un obbligo non può esistere se non a partire da un'istanza superiore," De potestate papae et concilii, in F. De Vitoria, Relecciones Teológicas, ed. Luis G. Alonso Getino, Madrid: La Rafa, 1934, II, 216. "The free acts of God ... are ruled by the divine reason as by a naturai law of God Himself. The proof of this statement is that God always acts according to right reason, not the reason of another, but His own; and therefore, the rectitude of the free acts of God's will is measured by the judgement of His own intellect" (F. Suàrez, "De legibus, ac Deo legislatore," in Selections from Three Works, Oxford: Clarendon Press 1944, II, II, 152 f.). Id., II, III, at 162. Pope Benedict XVI, "Faith, Reason and the University." Id. ^"^ Id.
the guardianship o f faith should not be imposed on the politicai
Pope Benedict XVI, Meeting with the Representatives of British Society. Pope Benedict XVI, Meeting wìxh Representatives from the World of Culture. Pope Benedict XVI, "The Ustening Heart." Pope Benedict XVI, "Faith, Reason and the University." J. Ratzinger and T. Bertone, Declaration "Dominus lesus" On the Unicity and Salvific Universality of Jesus Christ and the Church, 6th August 2000, II, 9 et seq. J. Ratzinger, "L'Europa nella crisi delle culture," in II Regno-Documenti, 9/2005, 214-219. Pope Benedict XVI, Meeting with Representatives from the World of Culture.
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Pope Benedict XVI's Legai Thought
Reality and Transcendence
43
community by means o f an insane commingling o f religious and
proposed. I n particular, we maintain that i t is possible to suggest
politicai authority, nor must the Church give i n to theocratic nostalgia.
strategies that respond to what we see as social and cultural "patholo-
Rather, the Church must make itself the champion o f t r u t h before
gies," without resorting to an "objective" concept o f reason. T h i s
the politicai authorities by passing through reason. T h a t is, i t must
is accomplished by suggesting a relationship between reason and
staunchly defend the naturai law i t feels was entrusted to i t , but
religion that does not depend on an express or implied relationship
which is also always accessible to every reasonable human being.^^
of subordination. There are two alternative reflections: one concerns the concept of reason, and the other the relationship between reason and faith.
AN A L T E R N A T I V E PROPOSAL: A SECULAR TRANSCENDENCE
Let US begin w i t h the first. T h i s , too, takes the form o f two distinct considerations. First o f ali, i t is interesting to briefly wonder about the relationship between reason and positivity. Benedict points to and
Despite our differences, which we will address shortly, we imderstand and share many o f Pope Benedict X V I ' s criticai remarks about contemporary culture. I n general, we share his doubts concerning a merely and radically positivistic interpretation o f science and law. We adopt his belief i n the centrality o f the interpretation o f text (essentially legai text, i n our case), i n the nonrelativism o f the rights universally ascribable to the human being, and i n the essential importance o f religion, not only i n the sense o f religious freedom, but also i n the sense o f the social function o f religious discourse. Furthermore, we believe - although we must admit that, under a more analytical examination, different undertones may emerge i n our positions here that politics is more than a contractual relationship. T h a t is, i t must be based on c o m m o n principles, or even promote shared values able to guide social action. Moreover, we are convinced that the reference to transcendence is an inevitable part o f our relationship w i t h our own existence: i f we were inseparably b o u n d only to the material reality, without finding plausible reasons even to think - or hope - o f an "other" w o r l d , we w o u l d lose what is probably the highest and most distinctive human trait. However, when we go on to examine the possible reasons for what we see as the potential deficits o f certain influential trends i n the contemporary scientific, politicai, and legai cultures, and attempt to sketch Solutions, our trajectory deviates fi*om the one Benedict
criticizes a contemporary positivity, i n which there is not only the hypostasis o f the naturai datum (in science) or the symbolic one (in legai or religious texts), which is considered complete i n and o f itself and cut off from interaction w i t h rational interpretation; rather, there is also a specific idea o f rationality, which, i n the current usage, is generally defined as "systemic rationality." I t deals w i t h the kind o f functional, value-neutral rationality that governs social subsystems and their modus operandi. Benedict presents this rationality i n an almost exclusively negative light, so that i t gives way to the superiority of objective naturai reason inspired by the lex divina. This position risks unilaterally denying the advantages that can flow firom developing the autonomy o f systematic rationalities. Legai language, for example, owes m u c h o f its vaine precisely to its formalism. A n d science and economics - and the list could be m u c h longer - best respond to human needs when they are respected and protected i n the specificity o f their unique ways o f fiinctioning. Does this mean that the kind o f reason that underlies criticai reasoning and ethical values must bow to the omnipotence o f systemic rationality? N o t at ali. Respect for the specificity o f systemic rationalities is not tantamount to the refusai to interact w i t h them, even critically. Simply, i n our view, value-based rationality does not claim to supplant systemic rationality, but instead enters into a dynamic o f tension w i t h i t . This tension can give rise to the entire universe o f thought that passes beyond the
fimctional
dimension. Transcendence reappears - i n a secular
way - as one o f reason's needs, but this does not erase the best Pope Benedict XVI, "The Listening Heart."
outcomes brought about by the positivistic culture.
Pope Benedict XVI's Legai Thought
44
Having clarified our view that axiopoietic reason (the creator and
Reality and Transcendence
45
dimension, trusting blindly only i n the functional principle. F r o m
bearer o f values o f principles) should not ignore or deny systemic
a secular-reasoning perspective, too - which originates fì-om the com-
rationality, which is coessential with positivism, but should instead
munication that goes i n search o f knowledge, principles, or shared
enter into dialogue w i t h i t and, when necessary, galvanize i t w i t h
values, w i t h mutuai respect for other ways o f reasoning and without
critiques, the next question is: what are the characteristics o f such a
prejudgment - the religious narrative (even i n its pluralistic sense) is
reason? Benedict X V I proposes an objective reason illuminated by
assigned
faith. I n our view, there are two problems w i t h this proposai. First o f
focused on the search for the deeper meaning o f our existence - a
an essential task for social life. Social communication
ali, it is epistemologically difficult to identify an "objective" basis for
form o f communication that, for many human beings, begins w i t h i n a
reason: i n ali o f m o d e m culture - and even more so i n recent
particular religious community and moves outward from there - is
decades - reason is identified w i t h a process o f reasoning, w i t h the
indispensable for rational discourse as well, since i t pushes the latter
intelligent " I " (or " W e " ) , and not w i t h an object, a res rationalis that is
to enrich its contents and enlarge its horizons. Therefore, although
in some way traceable i n the outside w o r l d . I t was precisely this
secular-rational discourse and religious discourse should be respected
antiobjectivist t u r n that allowed enlightenment thought to complete
in their separateness, they should never be considered mutually indif-
the universalization o f human reason i n a form and w i t h a humanistic
ferent. A n d by its contrast w i t h religious discourse, secular reason will
fullness never realized before. Second, i f reason needs the light o f
be reminded to t u r n its gaze upward - the prerogative that makes the
faith, there is always the danger that i t will be transformed into its
human, w i t h ali its defects, a very special being.
maidservant, losing the fireedom that defines i t . Moreover, given the indispensable existence o f religious pluralism, a reason that depends on faith will always and forever be merely the reason o f that specific faith, distancing itself firom a t m l y inclusive universalism. These criticisms implicitly reveal the n o t i o n o f reason that we hold most dear: the reason o f dialogue, debate, and argumentation, o f a secular t m t h , exhaustively sought after and always provisionai, never taken as given or deduced firom superior truths. But,
i f we accept the hypothesis that reason claims to find its
ultimate justification i n itself and i n its procedures, might religion come to lose its relevance, at least i n the public arena? M i g h t i t come to be marginalized, at best being reduced to something akin to a personal preference w i t h no relevance to public discourse, and at worst being dismissed as a spiritual weakness i n people who reftise to put their intellectual capacities to full use? A n d w o u l d we, under such circumstances, come to lose our ability to t u r n our gaze on high, to seek alternatives to what offends our humanity i n the given reality and to find new reasons to hope? I n our view, such deplorable developments are not at ali the necessary result o f a secular reason, but are rather the consequence o f a reason that has lost contact w i t h an important part o f itself, w i t h the communicative and normative
Pope Benedict XVFs Legai Thought A DIALOGUE ON THE F O U N D A T I O N OF L A W
Edited by
Marta Cartabia Constitutional Court ofitaly
Andrea Simoncini University of Florence
CAMBRIDGE U N I V E R S I T Y PRESS
CAMBRIDGE UNIVERSITY PRESS 32 Avenue of the Amcricas, New York, N Y 10013-2473, USA Cambridge University Press is part of the University of Cambridge. It furthers tire University's mission by disseminating knowledge in the pursuit of cducation, Icaming, and rcsearch at the highest intemational levcls of cxcellence. www. Cambridge. org Information on this titic: www.cambridge.org/9781107090200 © Cambridge University Press 2015 This publication is in copyright. Subjcct to stamtory cxception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written pcrmission of Cambridge University Press. First published 2015 A catalog record for this publication is available from the British Library. Library of Congress Cataloging in Publication Data Pope Benedict XVI's legai thought ; a dialogue on the foundation of law / edited by Marta Cartabia, Andrea Simoncini. pages cm ISBN 978-1-107-09020-0 (Hardback) 1. Benedict X V I , Pope, 1927-Political and social views. 2. Law-Philosophy 3. Catholic Church-Doctrines. 4. Canon law. 5. Christian sociology-Catholic Church I . Cartabia, Marta, editor. I I . Simoncini, Andrea (Law professor) editor. K230.B463P67 2015 340'.115-dc23 2014042926 ISBN 978-1-107-09020-0 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for cxternal or third-party Internet Web sites referred to in this publication and does not guarantee that any content on such Web sites is, or will remain, accurate or appropriate.
English translations from foreign languages were provided by Mariangela
Crema.
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CONTENTS
Foreword by Giorgio Napolitano 1
A Journey w i t h Benedict X V I t h r o u g h the Spirit o f Constitutionalism Marta Cartabia and Andrea Simoncini
PART I 2
3
4
5
6
pcige xi
L a w , Reason, a n d Religion
1 31
Reality and Transcendence: M o r e T h a n a Religious Issue Armin von Bogdandy and Sergio Dellavalle
33
H u m a n D i g n i t y W i t h o u t God? Reflections on Some Relevant Speeches o f Benedict X V I Rafael Domingo
46
The Windows o f Benedict X V I : Reason, Revelation, and L a w Wael Farouq
57
The Secular State, Democracy, and N a t u r a i Law: Benedict X V I ' s Address to the Bundestag from the Perspective o f Legai Ethics and Democracy Theory Martin Rhonheimer
79
F r o m Regensburg to B e r l i n - Holiness and Reason: A Reflection on Pope Benedict X V F s Public Lectures J.H.H. Weiler
93
ix
Contents
X
7
" T o serve right and to fight w r o n g " : W h y Religion, H u m a n Rights, and H u m a n Dignity Need Each Other John Witte,Jr.
PART II
8
9
F u n d a m e n t a l Rights a n d F r e e d o m of Religion
F a i t h and Reason i n the Regensburg Address Giuliano Amato Religious Freedom i n the Politicai Speeches o f Pope Benedict X V I Mary Ann Glendon
106
FOREWORD 123
125
D u r i n g the pivotal years of his papacy, Benedict X V I offered a body o f 137
legal-political thought characterized by such a breadth and wealth of sources that i t b o t h merits and inspires highly qualified study,
10
Freedom o f Religion: The C o n t r i b u t i o n o f Benedict X V I to a Universal Guarantee f r o m a European Perspective Christoph Grabenwarter
reflection, and discussion o f the kind coUected here at the behest o f 150
M a r t a Cartabia and Andrea Simoncini. I am delighted w i t h this project, and pleased to draw on i t i n order
11
Benedict's Legacy: H u m a n Rights, H u m a n Dignity, and the Possibility o f Dialogue Christopher McCrudden
to understand better and clarify - for myself, first o f ali - the unique relationship I had w i t h the H o l y Father Benedict X V I as President o f 165
the Republic o f Italy. O u r relationship was unique i n the intensity and naturalness, har-
P A R T III 12
D e m o c r a c y i n a Society of " O t h e r s "
Concerning the D o c t r i n e o f Democracy i n Benedict X V I Massimo Luciani
185
m o n y and tmst, which characterized i t from the start, perhaps i n some ways surprising even ourselves. I w o u l d say that this reflected a
187
personal affinity, including particularly a shared preference for quiet, free, and respectful dialogue, as well as a generational affinity. T h e
13
A c t i n g C o n t r a r y to Reason Is C o n t r a r y to God's Nature Andrés Ollero
latter was manifest, above ali, i n our c o m m o n background: b o t h o f us 205
have lived out our lives i n the historical context o f the twentieth century, w i t h its magnificent and terrible intertwining o f light and
14
A Listening Heart: Where Democracy Begins Andrea Fin
shadow, which our two countries experienced more than ali the 213
others, i n both dramatic and traumatic terms u n t i l the middle of the last century. T h i s experience motivates our shared personal
Contributors
227
Identification w i t h the project o f a new Europe, united at last i n
Index
229
fireedom and peace. I n one o f his most recent speeches, delivered at the Bundestag of Berlin i n December 2 0 1 1 , Benedict masterftilly diagnosed the precondition for this achievement as the "culture o f Europe," that culture b o m o f "the encounter between Jemsalem, Athens and Rome." I n the same speech I found the most explicit reference to xi
