Just Laws? What May the State Punish?

[Newborn]

I was having a conversation with a friend about the question of the State, in Christendom, punishing heresy as temporal crime, as a form of treason or sedition threatening the unity and stability of a society that was based, even in its civil order, on Catholic hegemony.

The idea was that the Church can protect itself, can punish spiritual crimes (sins), with excommunication, but never claimed to have authority over the body. Whereas the State can punish temporal/material crimes with temporal or physical punishment (be it a fine, imprisonment, paddling, or even execution). This is why it was the secular arm which actually carried out any physical punishment for heresy, and only under the presumption that it was a threat to temporal order as well.

However, my friend asked, basically, what gives the State the right to punish something as a crime. For example, he said, adhering to Communism may, in fact, be necessary to the stability or order of the society of Red China, or Islam to the society of Saudi Arabia, in a manner analogous to how Catholic hegemony was necessary to the order of Christendom. In fact, he pointed out, the ancient martyrs were killed under this very logic; Christianity as a subversive ideology.

My initial answer was, “Well, but heresy against Christianity is actually, in the objective order of the universe, a sin. Objectively speaking at least [it would be hard to determine the subjective culpability of people convinced of the truth of some other religion or ideology], the State can only punish people who are actually morally guilty of something. But there is no sin, objectively, in not being Communist or Muslim, so YES there is a double-standard, but it’s one that comes from the fact that, objectively, Christianity is right. Error, on the other hand, has no rights.”

However, my friend pointed out, “No, the State makes laws against lots of things that AREN’T intrinsically sinful but which it feels, in historical context, threaten public order: jay-walking, regulating the drinking age, safety regulations, collecting taxes, etc.” And he was right, of course. The State seems to be able to legislate against not only things sinful in themselves, but against neutral things and even optional good-in-themselves things if they are seen as harming the common good.

Well, this opened up a different can of worms for me, which is what I’m asking about here: namely, if the State is allowed to make a CRIME out of actions which are not intrinsically sinful, such as not paying the government a certain amount of money (ie, taxes), or jay-walking, or drinking under 21, under the determination that these things are threatening the common good…what’s to stop the government from turning socially inconvenient innocent people into civilly guilt people by passing a law against some neutral activity they engage in under the argument that it threatens the common good?

Who gets to determine whether a given (otherwise morally neutral) act does constitute a threat to the common good except the State itself? But what if the State says something as trivial as playing with Legos or whistling is a threat to the common good? Who has a right to question that??

Or, outside morally obligatory things, are we to admit that the State has an unlimited right to outlaw bad, neutral, and morally optional good things as long as it is under the pretense of being a threat to the common good?

What is the relation of conscience to the State, then? Obviously, there are limits to the freedom the State can provide conscience. If someone believed human sacrifice was a morally binding part of their religion, the State would not have to protect this, and could punish or execute that person if they did it. The “solution” in the internal forum to their claim of conscience is simply that, if they really believe it is morally obligatory, then they can do it and then submit to the consequences. Which is exactly what the Christian martyrs did.

But then let’s say take a situation like a Communist state, where opposing Communism might really cause an entire social breakdown and collapse and even more deaths (in a manner analogous to how heresy threatened the very stability of Christendom). Is it really unjust for the State to punish not being a Communist? Or is the State’s temporal justice (based on their judgment that it threatens the common good) sound, and simply the only solution for a conscientious dissenter to submit to the punishment??

What are the limits on what the State may illegalize under the pretense of “common good”??

Or take the example of a man who has some mutation that means he could be used to cure all manner of diseases. The only problem is he’d have to be killed to get it. What’s to stop the State from killing him for the sake of the common good?? Presumably, because he’s not “guilty” of any “crime”…but if “crime” is defined circularly with respect to “threatens the common good”…what’s to stop this man’s continued living from being called “criminal” in light of how it detracts from the common good?

 

[Newborn]

Or take the example of a man who has some mutation that means he could be used to cure all manner of diseases. The only problem is he’d have to be killed to get it. What’s to stop the State from killing him for the sake of the common good?? Presumably, because he’s not “guilty” of any “crime”…but if “crime” is defined in a manner simply relative to the “common good”…what’s to stop this man’s continued living from being called “criminal” in light of how it detracts from the common good? Does “crime” have to involve a free choice to be punishable? But what of the State’s power to restrain the violently insane? Surely they make no free choice, and yet are still a threat and thus restrainable.

Basically, I’m asking, given that intrinsically neutral or even optionally-good actions can be made illegal, by what standard can laws be judged “Just” which does not reduce to simply a utilitarianism regarding the common good? What line is drawn to prevent sacrificing the individual in an instrumental manner to the collective…without denying the obvious fact that the State does, in fact, have the right to exercise physical coercion over it’s members for the sake of the common good? At what line do the rights of the individual outweigh the good of all the rest? Or, rather, what line is the bare minimum that must be crossed for an individual to be considered to have forfeit his rights in the face of the common good?

 

[Newborn]

Perhaps this will demonstrate my question better:

A friend of mine has brought up an interesting point that I think gets to the heart of why I’m reconsidering my position on the burning of heretics.

The standard argument for defending the practice, which I discussed above, is that the secular State was punishing heresy not as an ecclesiastical crime or sin (already carried out by the Church in excommunication) but as a form of treason or sedition given how heresy threatened even the temporal order of civil society in Christendom.

When asked why the State could do this for civil order against heretics, but not against Catholics (in, say, a country based on some other religion or ideology where Catholicism itself would be a threat to social stability)…I could only answer that it was just in one case but not the other simply because Catholicism is true and actually morally obligatory on its members in a way that no other religion is (objectively speaking). Claims of “conscience” making this untenable didn’t seem to work, as the rights of even conscience are clearly circumscribed by public order and safety (for example, the State would still obviously have a right to stop someone even if they were convinced that human sacrifice was a binding religious obligation of theirs).

However, the point brought up by my friend was this: why, then, can’t the State punish Jews and Muslims (and other infidels, etc) for not converting as long as it could make an argument that them not doing so was against the common good? If it can enforce the Truth on heretics for the “common good” (under the presumption that Catholicism is indeed the Truth), why couldn’t it enforce the Truth on Jews and Muslims, etc??

Now, of course, many countries did expel the Jews during the Middle Ages for the sake of such hegemony (and, usually, to get the king out of debt). But, nevertheless, the Church has never admitted any right for the secular State to kill Jews or Muslims in the manner it seemed to approve of for Christian heretics.

The usual argument floated is that the Church has jurisdiction over the baptized, but has no jurisdiction over the non-baptized. True enough. But when it comes to the common good…if error has no rights, why should the State have to worry about whom the Church has jurisdiction over? If enforcing the Truth is allowed for the temporal common good, assuming Catholicism is the Truth, why does it matter whether it’s being enforced on people the Church already has jurisdiction over or not, if we’re claiming this was a matter of State authority, not Church??

Claims of “conscience” don’t seem to work, as the heretics probably have valid claims in conscience too. Sometimes you see an argument that the heretics, by their baptismal vows, have a “contract” to obey, but that argument seems flimsy too, especially given how many were baptized as infants.

So I’ll ask again: if the standard of what makes a law “just” cannot be simply a utilitarianism, cannot be simply “whatever it takes to achieve the greatest good for the greatest number” (which might end up involving inhumanities against innocents), but isn’t limited by the moral law or conscience either (as counter-examples easily demonstrate)…then what is the standard by which laws may be considered just??