On Thursday, Benedict XVI told the German Bundestag that the theory of legal positivism has produced legal and moral disasters, when it’s taken as the full truth about human beings and society.&The perennial question remains: how to know what is right and just?
...Historically, the notion of what is right has almost always been “based on religion.” At least in Catholicism, however, this has never simply meant some revealed form of the state. The Church finds the sources of law in nature and reason, both in turn founded in the “creative reason of God.”...The positivist legal theories of Hans Kelsen – who argued that the law “gave only functional answers,” and relegated God, nature, and a robust sense of rationality to “subjective” judgments – tragically encouraged law-abiding Germans to accept what was wrong in the name of legality.
"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 above from Robert Reilly. Here, Fr. James Schall, SJ:...
...the Holy Father suggests that wisdom is not just anything we happen to choose. It has an objective content that needs to be discovered. Wisdom is always set against what is not wise, what is not true.“Human rights,” with their de facto origins in Hobbes, also mean whatever a government or the individual wants them to mean. They frequently mean the power of the strongest, as the pope noted from recent German history.
The positivist and historicist background of this view of “human rights” is discussed with reference to Hans Kelsen and his realization in his old age that a “pure” concept of reason is not sufficient:
“Previously he [Kelsen] 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.”
Kelsen thought that this supposition of a Creator was “futile,” but the pope suggests that this is the very point: “Is it really pointless to wonder whether the objective reason that manifests itself in nature does not presuppose a creative reason?”
This pope, as he did in Spe Salvi with Adorno and Horkheimer, is fond of citing German agnostic thinkers themselves to indicate a way to the right conclusions. The alternative to “divine will” in things is “human will” in politics. But both divine will and human will are related to logos. Christianity never proposed the establishment of a divine law as civil law. One detects a reference to Islam here. Christianity “has pointed to nature and reason as the true sources of law.”
These are The Big Questions.
This Pope is a wise man.
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