For many years I have been an armchair critic of liberal democracy, the sort of ironic figure who mused in conversation and internet forums about the benefits of a Platonic aristocracy or a wistful longing for a romanticized version of Christendom. Rawls was a public enemy; and even though his Theory of Justice is only a single, albeit well-known, formulation of a political philosophy of justice in a liberal democratic society, I took it and still take it as representative of the larger body of thought on the subject. I still remember a doodle I made during one of Dr. Robert Baird's philosophy lectures. Satan, suspended halfway in the ice of frozen Cocytus, chewed on my own personal unholy trinity, including Rawls.
Why would I have sentenced Rawls to such a fate? At the time, the faults and errors in his philosophy seemed overwhelmingly obvious. He seemed to think that one could come up with a theory of what's right without considering what's good; or rather, and more damningly, that one could run a state without any conception of the highest good whatsoever. Moreover, what he describes as the original position has always seemed to me an odd condition for determining anything, much less a system of justice. The veil of ignorance is a bit like the curtain hiding the Wizard of Oz; except instead of a somewhat good-natured Nebraska con-artist handing out fake diplomas and phony medals, the man behind the curtain is Rawls himself, handing out a very select set of facts for his amnesiac quorum and subsequently telling them what they should make of those facts. In the end, Rawls seems to be pulling the wool over the reader's eyes.
There is little question in my mind that these criticisms remain more or less valid. But most importantly, the ahistorical character of his treatment of liberal democracy is in many ways the source of the other errors, and an examination of history really does provide a framework for understanding liberal democracy not as a substanceless, empty procedural shell, but as a philosophy drawn from a substantial heritage. There is more to liberal democracy than once appeared, and it may be that it was Rawls' own veil of ignorance that had blinded me.
Liberal democracy, even in its purely secular and even atheistic forms, has its origins in Christian thought. In fact, liberal democracy is an elegant attempt to solve the problem of government put forward by Augustine:
“But a household of human beings whose life is not based on faith is in pursuit of an earthly peace based on the things belonging to this temporal life, and on its advantages...So also the earthly city, whose life is not based on faith, aims at an earthly peace, and it limits the harmonious agreement of citizens concerning the giving and obeying of orders the the establishment of a kind of compromise between human wills about the things relevant to mortal life.” - City of God XIX:XVII
He goes on to discuss the irrelevance of what system is used within the temporal government to achieve this earthly peace, as long as the laws and customs of that system do not interfere with the just and proper worship of God. This passage in general is a foundation for the separation of Church and state that constitutes a marked departure from the pagan systems before it. In Rome, sacrifice to the gods was not merely a religious observance, but a civic duty. The Pontifex Maximus was a prime political and religious position, because the rise and fall of the state was seen as directly tied to the Roman religious system. Christianity cleaved in two this partnership; but like every divorce, this was a messy break, and for centuries we have seen Church and state clawing for each other's possessions. Christendom was not a unified kingdom of God on earth, but really more of a bitter fracas in which prince and pope struggled for control of the remnants of what was once a united politico-religious empire. It was through the hard lessons of these violent years, sealed by the Wars of Religion that were the birthing pains of a modern political era, that formed the impetus towards liberal democracy.
Like any attempt to paint a picture of fifteen hundred years of political development in the space of a paragraph, this is a caricature, but I believe that the generalization has a great deal of truth to it. Liberal democracy is one formulation of the post-Augustinian division of religion from polis. I would now like to turn to one particular expression of the broader notions of liberal democracy: the near-creedal statement present in our nation's own Declaration of Independence.
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these rights are Life, Liberty, and the pursuit of Happiness.”
Much complaint has come from certain Catholic circles about the problems with the language of rights. Yet in this statement I believe we can find both a defensible foundation for liberal democracy that avoids the charges normally leveled against Rawls' formulation while preserving the division between Church and State. By accepting a near-creedal assumption regarding unalienable human rights, the state has a set of operating principles which give its procedural justice a substantial philosophical basis without resulting in an oppressive or dominating state philosophy or cult. It may seem of small importance, but I believe the fact that the statement is “we hold” rather than “we believe” highlights the subtle difference between a government which has an operative philosophy of the highest good, and thus believes certain assertions about that good, and a government which merely holds that certain principles regarding its citizens must not be violated. In the latter case, a procedural justice, such as both Augustine and Rawls describe, is possible which allows all manners of practical political philosophy without requiring citizens and politicians to subscribe to some particular vision of the highest good.
Yet the inviolable principle of rights is necessary, and in my opinion still provides a point of frailty vis a vis liberal democracy: as long as the state is willing to hold that principle as an unqueried starting point, the system can operate more or less effectively; when this principle is absent or is subjected to state query, the system immediately begins to crumble. This is not only because such querying will almost certainly issue in a state philosophy, but because subjecting rights to state scrutiny immediately abnegates the notion that such rights are unalienable and instead suggest that they are really defined, created, and/or granted by the state. This was, of course, the source of some objection to the United States Bill of Rights. Once the routine issuance of explicit declarations of rights becomes programmatic to a liberal democracy, that government's stance on rights seems to have clearly shifted from the concept of rights as unalienable to a concept of rights defined.
Another source of contention between liberal democracies and the Church is that in attempting to maintain an earthly peace under the principle of universal unalienable rights a government may enact legislation which allows or protects certain acts which are repugnant to the laws of the Church. However, a civil law may be repugnant in several ways: it may allow someone to do something which the law of the Church forbids, or it may require someone to do something which the law of the Church forbids. I would like to briefly examine a few examples and make only preliminary comments on the way in which I believe a liberal democracy and the Church should view the example. I will start with what I hope is the least controversial.
(1): A law in which all citizens must worship the state gods. Clearly, in this example, the state has not only developed its own substantial religious philosophy, but it violates the premise of the unalienable rights of its citizens, who should be free, insofar as they do not violate earthly peace, to pursue their understanding of the highest good. The Church would be forced to disobey this law, and Christians would by conscience be forced to protest unto martyrdom. However, the Christian would not be justified in breaking other laws which do not violate their universal rights (I wrote on this topic in my note On Civil and Ecclesiastical Disobedience).
(2): A law in which a Church must turn over information to the state. This can be a grey area; insofar as the Church is an institution operating within a state's boundaries, the Church is beholden to provide certain sorts of information to the state regarding its economic activities. Since the privacy of this information is not generally a tenant of their faith, it is unnecessary and unjust to withold it. However, information given under the seal of confession is protected by the faith and the oath of the priest, and it is unjust for a state to require it. A Christian would have to protest unto death, and martyrdom for the seal of confession has happened.
(3): A law allowing homosexuals to marry. It is important to remember there is a difference between ecclesiastical marriage and civil marriage. In truth, I believe that in a liberal democracy the state in order to maintain earthly peace must understand marriage according to its citizenship; and thus it is possible that such a state would consider homosexual marriage valid according to universal rights. This cannot effect the Church; if the state attempted to force an ecclesiastical body or authority to recognize or perform such a marriage, it would be crossing the lines and interfering with its citizens' pursuit of the highest good. A Christian may and should vote his or her conscience regarding the issue, but the state's recognition of homosexual marriage should not spark civil disobedience.
In this third example, the compromise which is made by liberal democracy may be at odds with the beliefs of the Church, but it does not directly require the Church or its members to do something which is against their belief or forbid them from doing something which their beliefs require. In many ways, it shows the flexibility of liberal democracy to accommodate a diverse population in peace. And it is precisely this flexibility towards earthly peace in the world of practical politics that has of late made me look more approvingly on the philosophy of Rawls.