A Reflection on law for the Feast of St. Thomas Aquinas.
As we celebrate Thomas Aquinas today, I think it is safe to say that only a small minority of Americans have read anything he wrote. To be fair, his writing is dense and dry. Some of it is only available in Latin. But I would also be willing to bet that a much larger portion of our population has come across one of his claims: laws which contradict the natural and eternal law are unjust and should not be followed. Martin Luther King, Jr. cites Aquinas in his “Letter from Birmingham Jail” (see image below) to explain why segregation laws are unjust and should not be followed. In 1963 this was a profound, counter-cultural and necessary message. (Every time I teach it, I do find a little bit of joy from seeing the ideas of a fellow Dominican used as one step towards making the world a better place.)
Given the events since the murder of George Floyd, the current fears of war with Russia, and the push to get people further into space, one could be forgiven for thinking that it’s still 1963. MLK’s writing certainly remains profound for us today. However, I think our time needs to be reminded of the basics which MLK took for granted. We need to read a little more deeply and remember the rest of what Aquinas wrote about the law (something MLK clearly did while getting his doctorate in systematic theology). Unjust laws are the footnote — they are not the main focus of legal theory. In a world where the claim that “an unjust law is no law at all” is thrown around right and left, the modern revolutionary is the one who respects authority.
To be clear, I am not arguing that all laws are just or that we should be blindly subservient to the government. Nor am I saying we shouldn’t protest. It can be a powerful way to create needed change. Civil disobedience will always be necessary as systems will always be flawed as long as humans run them. My claim is merely that we have talked about the exception so much that we have forgotten the norm.
What is the norm?
Consider this: Before I graduated from college in Indiana, I got three speeding tickets, each costing about $150. One was for going 78 mph in a 65 zone, another for going 68 in a 60 (my cruise control was set at 63) and the last was for going 58 in a 55. Students laugh when I share this. Most of them don’t even know what the speed limit on 290 is. They certainly cannot imagine a world where going 10 miles over the speed limit on the highway matters. To be fair, Chicago does have norms for “safe” driving — they just don’t match the written laws. Can you imagine Chicago without any traffic norms at all? I wouldn’t leave the priory!
Or look at our use of alcohol. Each year in Moral Theology we discuss whether alcohol can contribute to our happiness; and students have some excellent reflections on the formation of friendships, the dangers of alcoholism, the horrors of drinking and driving, the goodness of simple pleasures in moderation, etc. Then we push it further: “Can it be good for a teenager to drink alcohol?” Invariably students bring up concerns about healthy neurological development. Rarely does anyone say, “No, it’s better for me to follow the law than to drink with my friends.”
Aquinas, on the other hand, insists we have a moral obligation to learn from and obey laws. Always. As MLK correctly explains, he does not argue that we don’t have a moral obligation to follow bad laws — he argues that unjust laws are not laws at all. This is a bizarre claim at first. He isn’t saying that they don’t actually exist or that no one passed them. He is saying that an unjust law fails to meet the necessary criteria for something to count as a law. Might does not make right. A law is “an ordinance of reason for the common good, made by him who has care of the community, and promulgated.”1 Laws are supposed to teach us how to be part of a harmonious society. They help us to be good. For example, school-zone speed limits count as laws because they structure our driving practices around the goal of protecting children. They are made by a legitimate authority and are very clearly posted for drivers to see. Following such a law is simply a good thing to do — individually and communally we benefit from the harmony such a law creates.
If a law isn’t actually directed to achieving a reasonable good (a major topic in its own right, which I have to set aside here), it’s an abuse of power and not a law. A law limiting families to one child is oppression, not law. However, a lot of laws have good reasons of which people aren’t aware or with which they disagree. We are not all experts. It’s important to hold government leaders accountable for creating good laws, but that’s also a lot of work. Sometimes I do just need to trust that a law has a good reason even if I don’t understand it.
None of this tells us how to respond to unjust laws. Should we follow them? Aquinas’s answer is, unsurprisingly, nuanced.2 If the law is directly contrary to clear natural goods or divine goods, then do not follow it; they will not lead you to any form of goodness. Breaking these is the right choice. MLK explains why masterfully: “All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority.” Following such a law clearly adds to the destruction of human dignity individually and communally.
About those COVID-19 protocols …
But laws can fail to be real laws in other ways. A secret law isn’t a real law — if it isn’t promulgated, one can’t learn anything from it. A law could aim at a good goal but fail to accomplish it because the law is based on false assumptions or insufficient evidence. A government can overstep its authority. Do we have any obligation to follow a misguided law? According to Aquinas, yes, these “unjust laws” often do bind our consciences. Why? Because disregard for authority damages society and that should never be taken lightly. Something is still gained from following them even if it isn’t ideal. I think the American drinking age fits here. I disagree with 21 as the drinking age and think it should be lowered. But I don’t regret following it when I was in high school and college, and I encourage students to do so, too. There is much to be said for learning how to listen to authority even when authority is somewhat wrong.
If Aquinas is right on this point, we have a lot to ponder when it comes to COVID protocols. One might generously call them a rough draft of what an ideal pandemic response would be. Revisions keep coming and everyone wants to supply their own peer-edit. Whether these protocols actually accomplish the goal or not, they are a real attempt to care for the common good of society; conscience demands that we prioritize this. The problem is that the right means to the end isn’t crystal clear. Aside from the novelty of this virus itself, there are tons of unintended consequences to every choice and many social goods that seem to fight against each other (i.e. physical health, mental health, economic health). Like many people, I have gone down rabbit holes reading about the efficacy of various safety measures. But I’m not an expert and I’m not in charge, so I have stopped researching. Sometimes we all just need to trust others and do what we were asked to do.
Other times you do need to push back. I think I would really struggle to strictly enforce masks if I were a kindergarten teacher. Some protocols do seem to have gone too far, and I understand the argument that those measures are too harmful to children for us to follow them. However, I do not see any similar argument for teenagers and adults. Even if it turns out that wearing a mask while I taught for the last year and a half did little to stop the spread of COVID (which I can’t totally rule out), I am sure Aquinas would tell me I did the right thing by complying. Being part of a harmonious whole and prioritizing public health is a good thing even if we did it badly. It significantly outweighs some facial discomfort.
Laws can be wrong. My understanding of Aquinas could be wrong. Aquinas himself could be wrong. All of this is possible, and we’d be a bit foolish to think otherwise. We’d also be foolish to mistake the exception for the norm and critique laws more than we follow them. If we want to live well, find joy in society and one day enter into eternal joy with God, it’s time to remember the goodness of obedience. If it turns out everyone in charge was wrong, I hope we all have the humility to pray as Christ did: “Forgive them, Father, for they know not what they do.”
Brother Trout,
Thank you for posting that Aquinas piece as it pertains to the Pandemic. Your level of effort is clear and knowing you like I do, I believe your heart is a good one.
Per Pope Francis, Parenthood is a Catholic vocation. It provides a different but no less important perspective than that of a Dominican Brother. And like so many other parents who send their children to Fenwick, my wife and I entrust you and all the employees of the institution to instruct our children on so many levels. Having once taught and coached at Fenwick for many years, I know it is noble work. So with that in mind, I thought it pertinent to share with you my reaction to your January 28th essay.
To start:
• Have any of your housemates repeatedly cried themselves to sleep in the last two years over the effects of the government’s broad mitigation directives?
• Over the last two years, have any of your housemates had suicidal thoughts or considered self-harm due to the draconian, life-altering, and recently determined less-than-useful Covid policies imposed by the government?
• Relative to the adolescents in your charge, have any of your housemates ever lost 22 months of their lives that are more irreplaceable and life-forming in such a guilt-laden way than today’s students?
• Have any relatives or friends of yours suffered “exclusions” from these broad policies, or repeatedly contracted the disease, or tragically passed away from COVID or worse, from the vaccine like some of mine have?
• Have you ever read about the hundreds of FDA-approved drugs and food chemicals that have been subsequently pulled from the market due to dangers found in and harms caused from these approved products only long after their initial approval?
• Have you read about the mental downsides to masks, the physical harm of vaccines, or the dangers of social isolation for adolescents for long periods of time?
I could continue the questions but I think I have made my point. Your quote might hold true for some very small matters of living: ” I’m not an expert and I’m not in charge, so I have stopped researching. Sometimes we all just need to trust others and do what we we’re asked to do.” But sometimes, especially for the really important moments, one simply cannot “stop researching…. just trust others and do what [one] is asked to do.” I am far too deeply “conscience bound,” to merely stop doing so when it comes to the pandemic and its mitigations due to a public and spiritual commitment I also made before God: to protect my children.
Naturally at the start of the Covid-19 pandemic, we were all afraid and willing to comply with what our trustworthy experts dictated, thinking little of what we were giving up for the sake of safety. Fear is powerful stuff. Few of us had any idea what would happen in the short term so many of us got into line, sacrificing much, feeling conscience-bound for the benefit of “order” and others.
But as the pandemic moved into the summer of 2021, the resulting data from 15 months of different approaches taken by many states and nations was clear: the proposed risk/benefits of mitigations for the less-at-risk were not nearly as justifiable as those for at-risk adults. Pre-vaccine natural immunity enabled many survivors to confidently face down the virus, while near-miraculous vaccines – with their own set of risks and shortcomings – and other mitigations were available for all adults to judge and act upon. Politics then intervened as the crisis offered an opportunity, cloaked in service to others and guilt, for some in power to leverage the fear. Coercion – threats of losing employment, restrictions from public spaces, mockery, scorn, social rejection, etc – became the accepted and ruthless “norm”, cruelly reinforced by the elected and the media leadership, driving a sanctimonious mob who had no qualms about ridiculing, bullying, and ostracizing anyone who disagreed.
At that point, what sadly remained absent from Fenwick’s response to that cruel and soul-crushing situation was a spirit that could have been guided by another Aquinas guiding quote:
“He who is not angry when there is just cause for anger is immoral. Why? Because anger looks to the good of justice. And if you can live amid injustice without anger, you are immoral as well as unjust.”
To be both “conscience-bound” and “justly angry” can and often does simultaneously exist. Throughout history, many have abided by hollow rules and fought them tenaciously at the same time. But in this particular case, the problem lies in Fenwick’s choosing to do one without the other. This decision to passively abide without a fight was extremely disappointing, especially for an institution that rightfully brags about forging leaders and “veritas”.
Undoubtedly, Fenwick’s efforts in some areas and under these incredibly straining circumstances have been amazing and commendable. I clearly see that quite often. However, the complacency and unexamined acceptance of so much egregious abuse of power over kids seems nearly criminal. It has taught the young in Fenwick’s care almost nothing about self-respect via an exercise of personal rights while abiding by the rules – no matter how ridiculous those rules might be. There was no demand by the school for an open and public dialogue with government to candidly discuss its dictates, or promotion of lawful resistance, or leveraging the American model of governance (free speech, rights to assemble peacefully, petition the government, etc) toward change. Like the third man in the Parable of the Talents, this 1000-coin opportunity was buried. There was no Fenwick-led fight to be proud of. Questions pointed at authority did not materialize. Ever. And if there were, it was never deliberately communicated or promoted to the community. Sadly, fear and compliance reigned as it appeared lambs were being led not by lions, but by sheep, teaching our children that their conforming, even when faced with unchecked control, was not only right, but holy, expected, and rewarded. That missed opportunity to robustly and safely work the gears of governance toward what is right and just is yet another tragedy of this lost time, for both the students and Fenwick’s legacy.
When the dust settles decades from now, and these kids realize what the Fenwick community did both FOR them and TO them, I fear their conclusion will be a degree of gratitude far less than that which the current alumni feel toward the institution. Many will realize that while compliance at this time was necessary, what remained overtly and sadly absent was the love that would have been clear from a purposeful and intelligent fight against reckless and hypocritical government overreach, much of which was based on weak science and political need. Your Conscience Bound essay will let them know who sat by, watched it all, and rationalized leadership’s lack of skepticism with curated words from Aquinas.
Last, I would like you, for just a moment, to imagine losing something both irreplaceable and incredibly meaningful to you. Maybe as a joke, a kid hid a unique ordainment gift from someone special. Or maybe you lost the privilege to teach kids because of some unfounded and damaging lie that had to be investigated. The examples are numerous but your anger at the incredible injustice would be profound and rightly so.
Depsite efforts to make the most of a crummy situation, as a teacher through these 23 months, I am certain know some fraction of that feeling from irreplaceable loss that the kids repeatedly – possibly daily – have suffered from since the pandemic began. Tragically for them, this time in high school and their unmade memories will never return. And the institution they believed in did nothing but accept every last whim of the powers that be. I am fairly certain Aquinas would have both reluctantly complied for the sake of order while challenging every inch of what has been imposed.
I too remain conscience-bound and as Aquinas admits, subject to the laws of man, limited as they are because they were created by flawed human beings. However, inside those parameters, one finds that sometime life requires more than grace, compliance, forgiveness, and humility. Life often also demands taking risk with a grit, tenacity, and fearlessness that can face and overcome any wrongs.
Someday soon, I would sincerely like to enjoy another essay of yours about this requisite grit which is just as compelling and readable as your January 28th essay was. Maybe something about the fearlessness of Jesus challenging the hypocritical, arrogant, powerful, entrenched, and misguided Pharisees. The same Pharisees who, fearful of a deliverer of truth, cowardly leveraged sleazy Jerusalem politics, whispered lies into the ears of the mob, and plotted to have him executed, while Pontius the Roman Prefect, knowing the injustice he was witnessing, did nothing but wash his hands and walk away.
Respectfully,
Matthew Scharpf
Br. Trout, words cannot express my disappointment with your position on Covid 19 protocols and teenagers. Please do not stop researching. And teens are not okay. Adults who are marginalizing teens and children – for getting covid, for being exposed, for questioning protocols that carry risks to health & learning, or for vaccination status – are not Jesus’ people. Two years into the pandemic there are well-researched, studied and compassionate mitigation tactics to protect high-risk populations which do not require using children and teens as human shields.
Perhaps the most honest abdication of personal responsibility on the topic: “But I’m not an expert and I’m not in charge, so I have stopped researching.” Even if not apparent to the author himself, as he also purports to advise from this position of chosen ignorance, it appears the author feels guilty for having stopped researching and is seeking forgiveness for the ramifications of that choice and the seemingly similar choice of his compatriots. Persons in position to, but choosing not, to lead in the face of crisis is a prime and sad example of the deteriorating fabric of modern civic, let alone religious, responsibility. You are certainly to be forgiven Brother, but the dreadful harms your institution’s complicit failure to lead have caused, prolonged and promoted will remain. You, of course, always have the opportunity to right your ship and plot a new course. Writing as you have suggests you have the courage to do so. I pray you do, but please know that your statement “prioritizing public health is a good thing even if we did it badly” is wholly untrue — where you have admitted abdicating your responsibility to educate yourself on what “prioritizing public health” even means, there is no “if” at issue, it is a given the thing was necessarily done badly from the start. And where you know, or should know, the thing is badly done from the start, the only good thing left to have done was to stop. If not the power to change course, you have the power to stop, you appear to know that you should exercise it, please do. Peace be with you.
Other than the fact that you are out of touch with ANYTHING these students are going through as evidenced by this ridiculous leftist article, you also don’t have a basic understanding of mandates vs. laws…they are not the same.
“ Do we have any obligation to follow a misguided law? According to Aquinas, yes, these “unjust laws” often do bind our consciences. Why? Because disregard for authority damages society and that should never be taken lightly. Something is still gained from following them even if it isn’t ideal. ”
So with the above quote would you still agree with this statement with regard to WW2 and the German soldiers just following orders while destroying lives and exterminating Jews? Because this is hard to justify and frankly offensive.
Let’s be clear, this was never about a virus that has a 99.96% recovery rate and as time marches on the evidence could not be more clear. At this point while the rest of the world opens up and moves on, the Catholic Church looks not only foolish and uneducated, but deeply sinister in following this ideology.
In conclusion, I couldn’t help but notice that you have included “George Floyd” in you tagline, just curious why no mention of the African American who mowed down and killed SEVERAL innocent people when he purposefully drove his car through a parade in Wisconsin.
Looks like more leftist hypocrisy is showing, you might want to tuck that back in as your narrative crumbles down around you.
Brother Trout,
Thank you for your reflection. This is really interesting and enlightening.
Chris