Monday, June 5, 2017

The Pope, the Archbishop, and the Poet

(A little off the beaten path for this blog, but--despite the title--not a joke.
Thanks to Bruce Huber, John Langbein, and Shai Wozner for introducing me to the sources in this post.)

I. The Pope

Last year I was fortunate to be invited by Bruce Huber to participate in a great little conference on Pope Francis's encyclical on the environment, Laudato Si'. The conference and reading the encyclical got me thinking about the relationship between law, religion, and urgent matters of policy (such as the environment and social justice), with some help from a classic source in English legal history courses (see below). More specifically, it got me thinking about the relative absence of law in contemporary discussions of religion and the environment, exemplified by Laudato Si'.

Reading the document with legal eyes, one thing that caught my attention was the essentially legal argument that the Pope makes about the responsibility of privileged classes and nations towards those less fortunate. Put simply, Francis argues that the earth's resources are the common property of humankind, and that disproportional exploitation by some creates a debt towards those who have benefited less from the common property:
Whether believers or not, we are agreed today that the earth is essentially a shared inheritance, whose fruits are meant to benefit everyone. For believers, this becomes a question of fidelity to the Creator, since God created the world for everyone. (93)
The natural environment is a collective good, the patrimony of all humanity and the responsibility of everyone. If we make something our own, it is only to administer it for the good of all. If we do not, we burden our consciences with the weight of having denied the existence of others. (95) 
The climate is a common good, belonging to all and meant for all. (23)
A true “ecological debt” exists, particularly between the global north and south, connected to commercial imbalances with effects on the environment, and the disproportionate use of natural resources by certain countries over long periods of time. (51)
The foreign debt of poor countries has become a way of controlling them, yet this is not the case where ecological debt is concerned. In different ways, developing countries, where the most important reserves of the biosphere are found, continue to fuel the development of richer countries at the cost of their own present and future. The land of the southern poor is rich and mostly unpolluted, yet access to ownership of goods and resources for meeting vital needs is inhibited by a system of commercial relations and ownership which is structurally perverse. The developed countries ought to help pay this debt by significantly limiting their consumption of non-renewable energy and by assisting poorer countries to support policies and programmes of sustainable development. (52)
Our world has a grave social debt towards the poor who lack access to drinking water, because they are denied the right to a life consistent with their inalienable dignity. This debt can be paid partly by an increase in funding to provide clean water and sanitary services among the poor. (30)
Not only does the Pope give his argument a very legal structure, he calls for legal action to protect the environment ("The establishment of a legal framework which can set clear boundaries and ensure the protection of ecosystems has become indispensable; otherwise, the new power structures based on the techno-economic paradigm may overwhelm not only our politics but also freedom and justice" (53)), and even advocates for "a true world political authority" (175). Yet, toward the end of the document he downplays the effectiveness of law:
The existence of laws and regulations is insufficient in the long run to curb bad conduct, even when effective means of enforcement are present. If the laws are to bring about significant, long-lasting effects, the majority of the members of society must be adequately motivated to accept them, and personally transformed to respond. Only by cultivating sound virtues will people be able to make a selfless ecological commitment. A person who could afford to spend and consume more but regularly uses less heating and wears warmer clothes, shows the kind of convictions and attitudes which help to protect the environment. There is a nobility in the duty to care for creation through little daily actions, and it is wonderful how education can bring about real changes in lifestyle. Education in environmental responsibility can encourage ways of acting which directly and significantly affect the world around us, such as avoiding the use of plastic and paper, reducing water consumption, separating refuse, cooking only what can reasonably be consumed, showing care for other living beings, using public transport or car-pooling, planting trees, turning off unnecessary lights, or any number of other practices. All of these reflect a generous and worthy creativity which brings out the best in human beings. (211)
To my legal eyes, this seems a bit odd. Without in any way deprecating education and the inculcation of values, couldn't law also have a role in "encourag[ing] ways of acting which directly and significantly affect the world around us, such as avoiding the use of plastic and paper, reducing water consumption, separating refuse, cooking only what can reasonably be consumed, showing care for other living beings, using public transport or car-pooling, planting trees, turning off unnecessary lights, or any number of other practices"? Not to mention in inculcating values? And crucially for the Pope's call to a socially informed environmentalism, couldn't the Church he heads have a role in enacting that law?

II. The Archbishop

Before getting to our Archbishop, note the Pope's reference to the idea of "conscience" in the quote above from paragraph 95:
The natural environment is a collective good, the patrimony of all humanity and the responsibility of everyone. If we make something our own, it is only to administer it for the good of all. If we do not, we burden our consciences with the weight of having denied the existence of others. [emphasis added]
In 1489 John Morton was both Archbishop of Canterbury (the highest church official in England) and Lord Chancellor of England. A Year Book case of that year (Y.B.Hil. 4 Hen. 7, f. 4, pl. 8) is often taken to demonstrate the religious foundations of what would come to be known as the law of equity. The case involved an executor of an estate who released a debtor, apparently in accordance with the law, but under circumstances that seemed unjust. The Year Book records the argument between the Lord Chancellor (and Archbishop) Morton, and John Fineux, a serjeant (a sort of barrister) (translation from Fifoot, History and Sources of the Common Law (1949)):
Fineux said that no remedy lay here....
Statue of Morton on the west face of Canterbury
Cathedral
by Theodore Phyffers
The ChancellorNullus recedat a Curia Cancellariæ sine remedio [None leave the Court of Chancery without a remedy]; and it is against reason that one executor shall have all the goods and shall make a release by himself.
Fineux: Si nullus recedat sine remedio, ergo nullus indigent esse confessus [If none leave without a remedy, than none need confess]. But, Sir, the Law of the Land covers many things, and many things are sued here which are without remedy at the Common Law, and so these latter lie in conscience between a man and his confessor; and this is such a case.
The Chancellor: Sir, I know well that each Law is, or ought to be, in accord with the Law of God; and the Law of God is that an executor, who is of evil disposition, must not waste all the goods, etc. And I know well that if he does so waste and makes no amends or satisfaction, so far as he is able, or will not make restitution, so far as he is able, he shall be damned in Hell. And to make remedy for such an act as this, as I think, is well done according to conscience.
The Lord Chancellor in 1489 was not ruling according to principles of "equity", but was coming to the aid of the "conscience" of the wrongdoing party. As explained by Brian Simpson (A History of the Law of Contract: The Rise of the Action of Assumpsit (1975), p. 398):
To a fifteenth-century ecclesiastic, sitting as a judge of conscience, in a court of conscience, to apply the law of conscience 'for the love of God and in way of charity', 'conscience' did not connote, though it included, some principle of injurious reliance or good faith. It connoted what we now call the moral law as it applied lo particular individuals for the avoidance of peril to the soul through mortal sin. The fact that the late medieval chancellors proceeded to apply the law of conscience produced a most curious conception of the function of their adjudications. Although there is no doubt that the intervention of the Chan­cellor was in part governed and influenced by other considerations--for example, by solicitude for petitioners who lacked a remedy--as a judge of conscience, his primary function and concern was not with the petitioner but with the respondent and of the good of his soul, that is with the wrongdoer. 
In other words, the English law of equity developed as a way to force subjects to act justly, based on the idea that the Lord Chancellor, also a cleric, had an obligation to protect litigants' consciences. Fineux had tried to argue that this was a matter best left to the private, religious lives of the parties ("lie in conscience between a man and his confessor"); Morton rejected this argument.

III. The Poet

Back to Laudato Si'. The Pope believes that we (the privileged of the world) owe a debt to those less fortunate (or less exploitative). He has hinted at steps he believes we should take to pay back this debt. He believes that in failing to make good on this obligation "we burden our consciences". Why not give this moral obligation, couched in legal terms, the force of law, as Archbishop Morton did?

To be sure, Morton had the power of the monarchical state at his disposal--failure to follow his orders could land one in the Fleet Prison. The Pope's power today is less obvious--certainly less physical. Yet aren't there believing Catholics who would follow the Pope's instructions, were they to be framed not as observations on the importance of values and education, but as legal norms?

What I am arguing for here is more law in religion. Recent decades have seen a sobering with respect to the ability of national governments to deliver real environmental and social progress, and a corresponding turn to alternate loci of lawmaking--local, private, transnational, and so on. Religious law, though, has been neglected.

Pope Francis recognizes the need for "a legal framework", but he has that framework at his disposal. I find it remarkable that in a nearly 200-page document on how we should live in the world, the encyclical fails to clearly tell believers, "do this" (e.g. travel by public transportation) or "don't do that" (e.g. don't leave lights on in an empty room)--see the desiderata in para. 211 of the encyclical quoted above.

I write this with due humility, realizing that as an observant Jew I am a descendant of the Pharisees whose legalism Christianity rejected. I also am fully aware that Orthodox Judaism itself has lagged behind many other religions in giving environmental values their due.

Yet my argument is not aimed at the Pope or the Catholic Church in particular, but at all contemporary religions concerned about justice in society and in its relationship with the natural world. Influential clerics from many religions and denominations have made powerful statements reflecting concern for the environment, but how many have given their adherents clear instructions--law--on how to implement this concern in their day to day lives? Think about what a difference it could make, for instance, were the heads of all the environmentally sensitive denominations to instruct their followers that it was a religious obligation to cut their electricity use by 20%.

As the poet C.N. Bialik wrote in another context, "Give us commandments!"

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