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The Listening Heart
Reflections on the Foundations of Law
Mr President of the Federal Republic,
Mr President of the Bundestag,
Madam Chancellor,
Madam President of the Bundesrat,
Ladies and Gentlemen Members of the House,
It is an honour and a joy for me to speak before this distinguished
house, before the Parliament of my native Germany, that meets here as a
democratically elected representation of the people, in order to work
for the good of the Federal Republic of Germany. I should like to thank
the President of the Bundestag both for his invitation to deliver this
address and for the kind words of greeting and appreciation with which
he has welcomed me. At this moment I turn to you, distinguished ladies
and gentlemen, not least as your fellow-countryman who for all his life
has been conscious of close links to his origins, and has followed the
affairs of his native Germany with keen interest. But the invitation to
give this address was extended to me as Pope, as the Bishop of Rome,
who bears the highest responsibility for Catholic Christianity. In
issuing this invitation you are acknowledging the role that the Holy
See plays as a partner within the community of peoples and states.
Setting out from this international responsibility that I hold, I
should like to propose to you some thoughts on the foundations of a
free state of law.
Allow me to begin my reflections on the foundations of law [Recht] with
a brief story from sacred Scripture. In the First Book of the Kings, it
is recounted that God invited the young King Solomon, on his accession
to the throne, to make a request. What will the young ruler ask for at
this important moment? Success – wealth – long life – destruction of
his enemies? He chooses none of these things. Instead, he asks for a
listening heart so that he may govern God’s people, and discern between
good and evil (cf. 1 Kg 3:9). Through this story, the Bible wants to
tell us what should ultimately matter for a politician. His fundamental
criterion and the motivation for his work as a politician must not be
success, and certainly not material gain. Politics must be a striving
for justice, and hence it has to establish the fundamental
preconditions for peace. Naturally a politician will seek success,
without which he would have no opportunity for effective political
action at all. Yet success is subordinated to the criterion of justice,
to the will to do what is right, and to the understanding of what is
right. Success can also be seductive and thus can open up the path
towards the falsification of what is right, towards the destruction of
justice. “Without justice – what else is the State but a great band of
robbers?”, as Saint Augustine once said. We Germans know from our own
experience that these words are no empty spectre. We have seen how
power became divorced from right, how power opposed right and crushed
it, so that the State became an instrument for destroying right – a
highly organized band of robbers, capable of threatening the whole
world and driving it to the edge of the abyss. To serve right and to
fight against the dominion of wrong is and remains the fundamental task
of the politician. At a moment in history when man has acquired
previously inconceivable power, this task takes on a particular
urgency. Man can destroy the world. He can manipulate himself. He can,
so to speak, make human beings and he can deny them their humanity. How
do we recognize what is right? How can we discern between good and
evil, between what is truly right and what may appear right? Even now,
Solomon’s request remains the decisive issue facing politicians and
politics today.
For most of the matters that need to be regulated by law, the support
of the majority can serve as a sufficient criterion. Yet it is evident
that for the fundamental issues of law, in which the dignity of man and
of humanity is at stake, the majority principle is not enough: everyone
in a position of responsibility must personally seek out the criteria
to be followed when framing laws. In the third century, the great
theologian Origen provided the following explanation for the resistance
of Christians to certain legal systems: “Suppose that a man were living
among the Scythians, whose laws are contrary to the divine law, and was
compelled to live among them ... such a man for the sake of the true
law, though illegal among the Scythians, would rightly form
associations with like-minded people contrary to the laws of the
Scythians.”[1]
This conviction was what motivated resistance movements to act against
the Nazi regime and other totalitarian regimes, thereby doing a great
service to justice and to humanity as a whole. For these people, it was
indisputably evident that the law in force was actually unlawful. Yet
when it comes to the decisions of a democratic politician, the question
of what now corresponds to the law of truth, what is actually right and
may be enacted as law, is less obvious. In terms of the underlying
anthropological issues, what is right and may be given the force of law
is in no way simply self-evident today. The question of how to
recognize what is truly right and thus to serve justice when framing
laws has never been simple, and today in view of the vast extent of our
knowledge and our capacity, it has become still harder.
How do we recognize what is right? In history, systems of law have
almost always been based on religion: decisions regarding what was to
be lawful among men were taken with reference to the divinity. Unlike
other great religions, Christianity has never proposed a revealed law
to the State and to society, that is to say a juridical order derived
from revelation. Instead, it has pointed to nature and reason as the
true sources of law – and to the harmony of objective and subjective
reason, which naturally presupposes that both spheres are rooted in the
creative reason of God. Christian theologians thereby aligned
themselves with a philosophical and juridical movement that began to
take shape in the second century B.C. In the first half of that
century, the social natural law developed by the Stoic philosophers
came into contact with leading teachers of Roman Law.[2] Through this
encounter, the juridical culture of the West was born, which was and is
of key significance for the juridical culture of mankind. This
pre-Christian marriage between law and philosophy opened up the path
that led via the Christian Middle Ages and the juridical developments
of the Age of Enlightenment all the way to the Declaration of Human
Rights and to our German Basic Law of 1949, with which our nation
committed itself to “inviolable and inalienable human rights as the
foundation of every human community, and of peace and justice in the
world”.
For the development of law and for the development of humanity, it was
highly significant that Christian theologians aligned themselves
against the religious law associated with polytheism and on the side of
philosophy, and that they acknowledged reason and nature in their
interrelation as the universally valid source of law. This step had
already been taken by Saint Paul in the Letter to the Romans, when he
said: “When Gentiles who have not the Law [the Torah of Israel] do by
nature what the law requires, they are a law to themselves ... they
show that what the law requires is written on their hearts, while their
conscience also bears witness ...” (Rom 2:14f.). Here we see the two
fundamental concepts of nature and conscience, where conscience is
nothing other than Solomon’s listening heart, reason that is open to
the language of being. If this seemed to offer a clear explanation of
the foundations of legislation up to the time of the Enlightenment, up
to the time of the Declaration on Human Rights after the Second World
War and the framing of our Basic Law, there has been a dramatic shift
in the situation in the last half-century. The idea of natural law is
today viewed as a specifically Catholic doctrine, not worth bringing
into the discussion in a non-Catholic environment, so that one feels
almost ashamed even to mention the term. Let me outline briefly how
this situation arose. Fundamentally it is because of the idea that an
unbridgeable gulf exists between “is” and “ought”. An “ought” can never
follow from an “is”, because the two are situated on completely
different planes. The reason for this is that in the meantime, the
positivist understanding of nature has come to be almost universally
accepted. If nature – in the words of Hans Kelsen – is viewed as “an
aggregate of objective data linked together in terms of cause and
effect”, then indeed no ethical indication of any kind can be derived
from it.[3] A positivist conception of nature as purely functional, as
the natural sciences consider it to be, is incapable of producing any
bridge to ethics and law, but once again yields only functional
answers. The same also applies to reason, according to the positivist
understanding that is widely held to be the only genuinely scientific
one. Anything that is not verifiable or falsifiable, according to this
understanding, does not belong to the realm of reason strictly
understood. Hence ethics and religion must be assigned to the
subjective field, and they remain extraneous to the realm of reason in
the strict sense of the word. Where positivist reason dominates the
field to the exclusion of all else – and that is broadly the case in
our public mindset – then the classical sources of knowledge for ethics
and law are excluded. This is a dramatic situation which affects
everyone, and on which a public debate is necessary. Indeed, an
essential goal of this address is to issue an urgent invitation to
launch one.
The positivist approach to nature and reason, the positivist world view
in general, is a most important dimension of human knowledge and
capacity that we may in no way dispense with. But in and of itself it
is not a sufficient culture corresponding to the full breadth of the
human condition. Where positivist reason considers itself the only
sufficient culture and banishes all other cultural realities to the
status of subcultures, it diminishes man, indeed it threatens his
humanity. I say this with Europe specifically in mind, where there are
concerted efforts to recognize only positivism as a common culture and
a common basis for law-making, reducing all the other insights and
values of our culture to the level of subculture, with the result that
Europe vis-à-vis other world cultures is left in a state of
culturelessness and at the same time extremist and radical movements
emerge to fill the vacuum. In its self-proclaimed exclusivity, the
positivist reason which recognizes nothing beyond mere functionality
resembles a concrete bunker with no windows, in which we ourselves
provide lighting and atmospheric conditions, being no longer willing to
obtain either from God’s wide world. And yet we cannot hide from
ourselves the fact that even in this artificial world, we are still
covertly drawing upon God’s raw materials, which we refashion into our
own products. The windows must be flung open again, we must see the
wide world, the sky and the earth once more and learn to make proper
use of all this.
But how are we to do this? How do we find our way out into the wide
world, into the big picture? How can reason rediscover its true
greatness, without being sidetracked into irrationality? How can nature
reassert itself in its true depth, with all its demands, with all its
directives? I would like to recall one of the developments in recent
political history, hoping that I will neither be misunderstood, nor
provoke too many one-sided polemics. I would say that the emergence of
the ecological movement in German politics since the 1970s, while it
has not exactly flung open the windows, nevertheless was and continues
to be a cry for fresh air which must not be ignored or pushed aside,
just because too much of it is seen to be irrational. Young people had
come to realize that something is wrong in our relationship with
nature, that matter is not just raw material for us to shape at will,
but that the earth has a dignity of its own and that we must follow its
directives. In saying this, I am clearly not promoting any particular
political party – nothing could be further from my mind. If something
is wrong in our relationship with reality, then we must all reflect
seriously on the whole situation and we are all prompted to question
the very foundations of our culture. Allow me to dwell a little longer
on this point. The importance of ecology is no longer disputed. We must
listen to the language of nature and we must answer accordingly. Yet I
would like to underline a point that seems to me to be neglected, today
as in the past: there is also an ecology of man. Man too has a nature
that he must respect and that he cannot manipulate at will. Man is not
merely self-creating freedom. Man does not create himself. He is
intellect and will, but he is also nature, and his will is rightly
ordered if he respects his nature, listens to it and accepts himself
for who he is, as one who did not create himself. In this way, and in
no other, is true human freedom fulfilled.
Let us come back to the fundamental concepts of nature and reason, from
which we set out. The great proponent of legal positivism, Kelsen, at
the age of 84 – in 1965 – abandoned the dualism of “is” and “ought”. (I
find it comforting that rational thought is evidently still possible at
the age of 84!) Previously he had said that norms can only come from
the will. Nature therefore could only contain norms, he adds, if a will
had put them there. But this, he says, would presuppose a Creator God,
whose will had entered into nature. “Any attempt to discuss the truth
of this belief is utterly futile”, he observed.[4] Is it really? – I
find myself asking. Is it really pointless to wonder whether the
objective reason that manifests itself in nature does not presuppose a
creative reason, a Creator Spiritus?
At this point Europe’s cultural heritage ought to come to our
assistance. The conviction that there is a Creator God is what gave
rise to the idea of human rights, the idea of the equality of all
people before the law, the recognition of the inviolability of human
dignity in every single person and the awareness of people’s
responsibility for their actions. Our cultural memory is shaped by
these rational insights. To ignore it or dismiss it as a thing of the
past would be to dismember our culture totally and to rob it of its
completeness. The culture of Europe arose from the encounter between
Jerusalem, Athens and Rome – from the encounter between Israel’s
monotheism, the philosophical reason of the Greeks and Roman law. This
three-way encounter has shaped the inner identity of Europe. In the
awareness of man’s responsibility before God and in the acknowledgment
of the inviolable dignity of every single human person, it has
established criteria of law: it is these criteria that we are called to
defend at this moment in our history.
As he assumed the mantle of office, the young King Solomon was invited
to make a request. How would it be if we, the law-makers of today, were
invited to make a request? What would we ask for? I think that, even
today, there is ultimately nothing else we could wish for but a
listening heart – the capacity to discern between good and evil, and
thus to establish true law, to serve justice and peace. I thank you for
your attention!
[1] Contra Celsum, Book 1, Chapter 1. Cf. A. Fürst, “Monotheismus und
Monarchie. Zum Zusammenhang von Heil und Herrschaft in der Antike”,
Theol.Phil. 81 (2006), pp. 321-338, quoted on p. 336; cf. also J.
Ratzinger, Die Einheit der Nationen. Eine Vision der Kirchenväter
(Salzburg and Munich, 1971), p. 60.
[2] Cf. W. Waldstein, Ins Herz geschrieben. Das Naturrecht als
Fundament einer menschlichen Gesellschaft (Augsburg, 2010), pp. 11ff.,
31-61.
[3] Cf. Waldstein, op. cit., pp. 15-21.
[4] Cf. Waldstein, op. cit., p. 19.
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