What is the most important moral test facing the United States today? In just a little over five years, the new century has presented us with many daunting challenges. Yet one issue calls for particular attention. I am referring to an emerging pattern of disregard-or worse, outright rejection-of the rule of law in America, and not merely in practice, but as a fundamental ideal: a willful disregard of elementary requirements of due process, together with norms of consistency, transparency, and other elements of what might be described as the ideal of legality.
The dangers posed by world terrorism and violence have created a climate in which rule by an all-but-unchecked executive and the disregard of individual rights are broadly seen as not only justified, but necessary. It is startling to consider what has become routine in just half a decade. Eminent jurists argue that the president can act without regard to congressional constraints or judicial review, by virtue of his powers as commander-in-chief in time of war. (And we are now apparently always at war.) Government officials, on the command of the president, carry out clandestine electronic surveillance in the United States, in defiance of explicit laws and without regard to even the minimal accountability built into those laws. Worst of all, torture has been defended in principle by, and incorporated into the practices of, the U.S. government.
To a considerable extent, the responsibility for these and similar practices rests with President George W. Bush, Vice President Dick Cheney, and other members of the executive branch of the government. Their efforts have been challenged almost from the beginning, and in Hamdan v. Rumsfeld, decided in June, the Supreme Court struck down the system of military commissions set up by the administration for the detainees at Guantánamo Bay. Yet it would be unwise to take much comfort from these developments. What the courts have given, the courts can take away, especially when our judiciary is deeply divided on these matters. The current U.S. administration could not have acted as it has without the acquiescence of Congress and the general public, reflecting both widespread support for what are seen as proactive efforts to preserve public safety, and widespread indifference to the claims of legality.
Indeed, the compromise reached in September between Congress and the White House on the treatment of detainees is not encouraging. It continues to permit the indefinite detention, without trial, of so-called unlawful combatants, while prohibiting habeas corpus challenges. If and when trials are conducted, military prosecutors will be allowed to admit both hearsay evidence and information previously obtained through torture. On the subject of protection against harsh interrogation in the future, the new law remains ambiguous, allowing the president to issue regulations determining “the meaning and application of the Geneva Conventions.” All in all, the compromise does little to reverse the excesses of the past five years.
This is not to deny, obviously, that we suffered a grave attack. Yet, as the legal scholar Bruce Ackerman observes in his recent book, Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism, even the worst terrorist onslaught would not threaten the existence of the United States as a political community-it would not destroy either our government or the political and social ideals that our government, at its best, embodies. The real danger is that we ourselves will undermine our political institutions and ideals in our response to those attacks; to the extent that we have acquiesced in the disregard of due process, that is precisely what we have done. And this danger, I want to suggest, presents a moral-as much as a political and legal-challenge. For the claims of due process and legality are not mere technicalities, but expressions of a person’s fundamental rights in his or her encounters with the state; and those who are denied these rights are subject to moral harm that should concern us all. By the same token, the disregard of due process and legality undermines our integrity as a particular kind of moral community, one which aspires to an ideal of political authority grounded in principles and consensus rather than arbitrary will backed by force.
In Western societies, the practices that sustain the values of public reasonableness and equity are inextricably bound up with the broader legal systems distinctive to those societies. We should not be surprised to find that considerations of legal procedure play a different role in societies organized along varied lines and possessing distinct legal arrangements. As Lawrence Rosen points out in The Anthropology of Justice: Law as Culture in Islamic Society, other societies can and do embody ideals of public reasonableness and equity in their own distinctive ways, ones that will not always resemble ours. Nonetheless, within the moral ecology of Western societies, public reasonableness and equity have long been embodied in practices of due process and respect for the rule of law, and it is difficult to see how these ideals can be sustained within this context if these practices are undermined.
To be sure, many Christian theologians and social ethicists, together with fellow citizens across a wide spectrum of religious and ideological views, have objected to the denial of due process and related practices in the United States. Yet moral theologians have been slow to identify the disregard of the rule of law as a distinctive moral issue. And even the most socially engaged Christians have not always taken account of the theological values at stake in maintaining ideals of due process and fundamental legality. The truth is that within American and European societies, the ideals and practices of due process can be traced, in key part if not entirely, to the expansion and reform of European and church laws beginning in the late eleventh century. As such, they are deeply rooted in a theological vision of the human person and the respect due to him or her as one whose judgment-and freedom-are the truest image of God in the visible creation.
As the legal historian Kenneth Pennington (among others) has argued, the idea of judicial due process emerged in the early twelfth century as part of the gradual abandonment of such medieval procedures as trial by ordeal, procedures gradually replaced by judges and juries. The growing reliance on human judgment-rather than the ostensibly divine judgments manifested through trial by ordeal-required that judicial processes should safeguard against the fallibility and sinfulness of human judges, while paying due respect to the claims of litigants and the accused. The papal court, with its insistence on observing the ordo judiciarius in all ecclesiastical judicial procedures, played a central role in this process, while canon lawyers laid much of the foundation for defending and elaborating due process.
The early-twelfth-century canon lawyer Paucapalea offered a rhetorical defense of due process by appealing to the most persuasive considerations known to his society-namely, the practice of God himself, manifest at the very origins of human history. As Pennington remarks in The Prince and the Law, 1200-1600: Sovereignty and Rights in the Western Legal Tradition, Paucapalea “noted that the ordo judiciarius originated in paradise when Adam pleaded innocent to the Lord’s accusation....[His] point is subtle but would not be lost on later jurists: even though God is omniscient, he too must summon defendants and hear their pleas.” A little later, the canon lawyer Stephen of Tournai offered the first definition of the ordo, including a summons in due form to a court having proper jurisdiction; the right of the defendant to some delay; an accusation put in writing with witnesses brought forward to support it; the insistence that a presumption of innocence be maintained until formal conviction; and the requirement that a final decision be rendered in writing. While these conditions are not exactly equivalent to our own ideas of due process, they reflect the same broad purpose: that judicial procedures be carried out in accordance with established formal processes safeguarding the rights of the accused to confront the case against him and respond to it before being convicted.
The ecclesiastical roots of due process have long been obscured, and perhaps the time has come to reclaim them. But if we-and here I mean, specifically, Catholic theologians-are to undertake this reclamation, we will first need to engage in a process of self-examination. For there are real questions about the extent to which the structures and practices of the Roman Catholic Church today reflect our own ideals of due process and legality. I am referring primarily to the authoritarian, “top down” structure of church governance, beginning with the papacy itself. For many, this style of governance reflects divine will or theological necessity, and as such, is beyond critique. The Catholic Church has always been governed in this fashion, so the logic goes, and always will be.
Yet as historian Francis Oakley argues in The Conciliarist Tradition: Constitutionalism in the Catholic Church 1300-1870, current structures of church governance are by no means inevitable-at least, not if history is any guide. Far from reflecting ancient Christian ideals or practices, these structures represent a distinctively modern option for a kind of monarchial rule, different from the more constitutional model offered by the conciliarist movement that emerged in the late medieval period. The hallmark of that movement was its insistence, in Oakley’s words, on an “assembly of general councils representing the entire community of the faithful and not necessarily limited in their voting membership, therefore, to the ranks of the episcopate alone.” While not necessarily democratic, such a model of church governance subjects ecclesiastical power to both limitation and accountability-thus creating an institutional context hospitable to ideals of due process and respect for law.
This is significant because whatever may be said in defense of the papacy as currently constituted, it is difficult to see how the concentration of nearly all juridical power in the hands of one individual can be consistent with a commitment to the rule of law. As Oakley remarks, arguments that emphasize the church’s unique status as a divinely instituted polity “are almost always deployed in an attempt to vindicate highly authoritarian ecclesial structures or practices that have altogether too much in common with those of secular authoritarian or even totalitarian regimes.” And so we North American Catholics find ourselves in an awkward position-committed to respect for law, democracy, and political equality in the public sphere, while at the same time (at least tacitly) endorsing an authoritarian style of government within the church. At best, this situation generates a tension between two very different ideals of political and communal life. At worst, it fosters authoritarian paternalism, including a disregard for the niceties of procedure in the face of urgent social goals. It is worth emphasizing that this attitude can be found across the spectrum of political and ecclesial stances, among liberals and conservatives alike.
On a more positive note, there is at least one context in which ideals of due process and proper legality are once again salient for Catholics across the political spectrum: the extensive conversations generated over the past decade by the sexual-abuse scandals-conversations already beginning to bear fruit in the form of institutional reform, albeit on a small scale. This sort of inquiry cannot proceed without raising the issues of due process and respect for law discussed here; and indeed, these issues are already moving to the forefront of the conversation. This is a hopeful development, for both the church and the wider society. We have much to learn from our fellow citizens as we reflect on what it means to be a church of law in service of grace. By the same token, we have much to offer in defense of fundamental ideals of due process and legality, especially once we have reappropriated the lessons of our own tradition and put them into practice in our own common life as a church community.