Notes: Saturday-Tuesday, August 14-17, 2010

More on the morality and legality of voting in Australian Federal elections

From yestereday's Herald:

In an anti-climactic ‘journalistic’ debut, former Labor leader Mark Latham revealed he will be lodging a protest vote this Saturday — and is urging others to follow suit.

[...] Mr Latham revealed his intention last night to place a ‘‘totally blank’’ ballot in the box as he posed as a journalist for a special report on the federal election for 60 Minutes.
[http://www.smh.com.au/federal-election/leave-ballot-blank-latham-tells-voters-20100815-1257h.html?skin=text-only]

According to the transcript for Mr. Latham's report for 60 Minutes, he said that

When it comes to good ideas for Australia's future, Gillard and Abbott have given the voters a blank piece of paper. I say let's give them a blank piece of paper in return. They say voting is compulsory in Australia, but it's not compulsory to fill out the ballot paper. You can put it straight into the ballot box totally blank - that's what I'll be doing next Saturday, and I urge you to do the same. It's the ultimate protest vote.
[http://sixtyminutes.ninemsn.com.au/stories/7944020/latham-at-large]

Mr. Latham (the former Member for Werriwa, to which electorate I belong) is incorrect to say that it is "not compulsory to fill out the ballot paper"--a particularly disappointing error to hear coming from a former Leader of the Opposition. As I said recently at Terra's blog,

Section 245(1) of the Commonwealth Electoral Act 1918 gives the following command:

"It shall be the duty of every elector to vote at each election."
[http://www.comlaw.gov.au/ComLaw/Legislation/ActCompilation1.nsf/0/14E2E2F9F0662775CA2576080017348A/$file/CwlthElectoral1918_WD02.pdf]

(The same Act (Section 101) also commands us to apply "forthwith" to become electors if not electors already. Also, Sections 239 and 240 prescribe the manner of voting for Senate and Lower House elections, respectively, thus ruling out the possibility that an informal vote could satisfy the obligation to vote.)

So given that the requirements imposed in the Act are, as far as I know, just, possible, and properly promulgated, the Act is a valid law and thus its commands are binding in conscience (I have no reason to think that they are purely penal) and it would therefore be a sin not to vote (properly).

To sum up:

1. Australian law commands non-electors to become electors.
2. Australian law commands electors to vote (and not merely informally).
3. A lawful command by a competent authority (which is what the preceding commands are) binds on pain of sin, so informal voting is sinful, as is obstinate non-enrolment.
(Obviously there are also exceptions.)
[http://australiaincognita.blogspot.com/2010/07/and-it-is-on-australia-goes-to-polls-on.html?showComment=1279552733981#c6237896335231841561]

Meanwhile, according to a report, apparently not available on-line, on page five of yesterday's Sydney Daily Telegraph entitled "Latham's informal vote call" by Nathan Klein and Alison Rehn,

While [1] it's not illegal to vote informally, [2] it is an offence to encourage others to do so.
[my square-bracketed interpolations]

(See also here for another instance of 2). I was interested to read that, because those two propositions were also raised in the blog comment which elicit my own blog comment quoted above:

One correction - since Australia has secret ballots the requirement is to attend a polling station. One can then voting informally. The candidates are usually so shameful it is surprising that the informal vote is not higher - never high enough to invalidate the poll.

What is wicked is that it is illegal to encourage informal voting - which is often the only moral choice.
[http://australiaincognita.blogspot.com/2010/07/and-it-is-on-australia-goes-to-polls-on.html?showComment=1279436353532#c2689661911322685743]

I've shown that 1 is mistaken, and as for 2, I was interested to read the following in that Herald article:

It was not illegal for Mr Latham to promote the casting of blank votes, Australian Electoral Commission spokesman Phil Diak said.

"There's no explicit provision in the electoral act against someone telling someone else to cast an informal vote as an opinion or a view," he said.

However, it was an offence to publish information that could cause people to cast an informal vote, such as a misleading election ad.

It seems that 1 and 2 are something of an urban myth, then. As for 2 though, although there might not be any explicit prohibition against "telling someone else to cast an informal vote as an opinion or a view", any command implicitly forbids its contradictory, and it hardly seems becoming of a conscientious elector to tell others, even if only "as an opinion or view", to shirk their duties.

Mr. Gurries on Msgr. Gherardini's book The Ecumenical Vatican Council II: A Much Needed Discussion

http://opuscula.blogspot.com/2010/08/msgr-gherardini-on-vatican-ii.html

An amusing joke, told by Dr. Brown, on France's (and, by extension, the West's) demographic prospects

From a comment by Dr. Brown at Fr. Zuhlsdorf's blog:

You know the old joke. If Lefebvre wins, the liturgical language of France will be Latin. And if he loses, it will be Arabic.

Comment by robtbrown — 16 August 2010 @ 8:18 am
[http://wdtprs.com/blog/2010/08/if-all-time-is-eternally-present-all-time-is-unredeemable/#comment-218822]

The beliefs and non-beliefs of a man who has spent "forty six years involved in Catholic education"

http://www.catholica.com.au/gc2/ge/008_ge_140810.php

(In related matters, see here for some of Mr. Coyne's opinions on the "real Jesus".)

Cardinal O'Brien on the death penalty and related matters

His Eminence The Cardinal Archbishop of St. Andrews and Edinburgh has written a dreadful opinion piece for Scotland on Sunday. The column came to my attention via a Catholic News Service article which appeared in last Sunday's Sydney Catholic Weekly under the headline "Cardinal attacks US 'vengeance culture'" (see here for a copy of the article at the C.N.S.'s own website). When I saw that headline I thought of St. Thomas Aquinas on the virtue of vengeance in the Summa, IIa IIæ, q. 108. If I had time I'd write I thorough rebuttal of His Eminence's article (a quick look at it indicates that it is even worse than it seemed in the C.N.S. report on it), but I don't at the moment, unfortunately (though there's a chance that I might write a confutation later.)

Reginaldvs Cantvar
Feast of St. Hyacinth, Confessor, A.D. 2010

More comments at Opuscula

http://opuscula.blogspot.com/2009/06/religious-freedom-faq.html
http://opuscula.blogspot.com/2009/06/faqs-on-church-and-state.html

Here are some more comments which I have submitted for publication at the Opuscula blog of Mr. Gurries:

***

1. Applying your definition (in your post “On Duties and Rights” of January 30, 2006) of a right, we can say that God is the subject of a right to obedience, and the term of this right would be man’s duty to obey him. The means which God has given man for discerning how to obey Him is his conscience, so the term of God’s right to obedience amounts to man’s duty to obey his conscience. But in judging how well a man has obeyed his conscience, God takes into account the prevailing circumstances; so for instance, if an heretic’s conscience is telling him to disseminate his errors, but the civic authorities have imprisoned him for doing so and so he is unable to disseminate them, God will not ajudge him to have sinned against his conscience, and a reasonable heretic knows this. Why then would it be illegitimate for the State to impose such a change of circumstances (i.e. imprisoning notorious public heretics), when such an imposition does not induce the offender of the Catholic religion to sin?
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http://opuscula.blogspot.com/2009/06/religious-freedom-faq.html

2. You say (in your post “On Duties and Rights” of January 30, 2006) that a proper right has three parts: a subject, which is the person exacting the right, a term, which is “the person with the corresponding duty” and an object, which is the matter of the right. But in a supposed right to public offences against the Catholic religion—which are the matter of a right to freedom of religion for heretics—the term is the Catholics who are exposed to these offences. But being exposed to the seductive errors of heretics is an occasion of sin, and one can only have a duty to put oneself in an occasion of sin for the sake of some higher duty, never for the sake of the sin itself, which would be an absurdity. (And as you say, “Rights have limits - ceasing to be a right at the point where a conflicting duty arises that is superior”, and the duty to avoid occasions of sin is certainly a superior duty when it is possible to make someone refrain sinlessly from imposing the occasion of sin, which, as mentioned in 1., is the case here.) Given, then, that one of the parts of the right is certainly missing, how can a right to religious freedom be considered a true and proper right?
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http://opuscula.blogspot.com/2009/06/religious-freedom-faq.html

3. Even if we suppose, by an impossibility, that there is a right to religious freedom of the kind which you describe, how can the matter of this right—which, in the case of offenders of the Catholic religion, is objectively false and evil—be anything other than the object of tolerance on the part of the offender’s neighbours and the civic authorities?
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http://opuscula.blogspot.com/2009/06/religious-freedom-faq.html

4. Dignitatis Humanæ teaches (§7) that the common good is composed of two subsets: one is the ‘just public order’, whose elements are listed in §7, and the other is “the rest”, whose elements are whatever elements are not listed under the heading of ‘just public order’, since these two parts are mutually exclusive and exhaustive. One element of “the rest”, then, would be an entirely Catholic populace’s desire to remain united in the Catholic Faith. But Dignitatis Humanæ teaches that with respect to “the rest”—including, as mentioned, the Catholic unity of the populace—“the freedom of man is to be respected as far as possible and is not to be curtailed except when and insofar as necessary” (§7). But is this not an inversion of the Traditional doctrine, which, if we were to try to encapsulate it in a slogan, would be something like “curtailing freedom to offend the Catholic religion as far as possible and not permitting it except when and insofar as necessary”, as is clear when Pius XII affirmed, in Ci riesce, that “religious and moral error must always be impeded, when it is possible”, and does this not therefore defy the emphatic teaching of Leo XIII that all the elements of the common good—since he speaks repeatedly of the common good without qualification—are to be taken into account when considering how much freedom the State should tolerate?
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http://opuscula.blogspot.com/2009/06/religious-freedom-faq.html

5. How does Suarez explain how bans on offences against the Catholic Faith (but not, for some reason, offences against Catholic morals, i.e. the natural law) “would involve, to some extent, forcing people to accept the Faith; and that is never permitted”? If he does not explain this, then could you, Mr. Gurries, elaborate on your understanding of this? It seems to be based on an illegitimate symmetry between being forced to disobey one’s conscience and being prevented from obeying one’s conscience.
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http://opuscula.blogspot.com/2009/06/religious-freedom-faq.html

Mr. Gurries,

As you know I am not objecting to the substance of your notion of ‘separation’, just the terms; both popular and Magisterial usage of the term ‘separation of Church and State’ has changed greatly during the more than a millennium from Gelasius I to the modern era, to the extent that the terms ‘that the State should be separated from the Church, and the Church from the State’ were condemned in the Syllabus of Errors. Given that that is the present-day usage, does what you have written not attract the censure of “evil-sounding”, i.e., using improper words to express otherwise acceptable truths (cf. the article “Censures, theological” in The Catholic Encyclopedia)?

Furthermore, your citation is of the then-Cardinal Ratzinger, but the man now reigning gloriously as Pope did not use the term ‘separation’ of Church and State when he had the opportunity to do so, at His Holiness’s December 13, 2008 visit to the Italian Embassy to the Holy See, the misrepresentation in a Zenit report notwithstanding:

"“This brief visit allows me to reaffirm that the Church is very aware that the distinction between what belongs to Caesar and what belongs to God, that is to say, the distinction between State and Church, is a part of the fundamental structure of Christianity. ... This distinction and autonomy are respected and recognized by the Church which is happy with them, considering them a great progress for humanity and a fundamental condition for its freedom and for fulfilling its universal mission of salvation among the peoples".”
[my emphasis,
VIS 081215 (600)]

Given that the term ‘distinction’ is clearly sufficient for the Holy Father, and use of the term ‘separation’ is at best imprudent, why your insistence on the latter?

Regarding “Religious Freedom FAQ’s”, I have condensed my objections into five questions, each no more than a paragraph when taken with its accompanying explanation, and I have submitted them at that post. You are free, of course, to publish as many or as few of them as you please, and to respond to them, if you wish to respond, at your leisure.
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http://opuscula.blogspot.com/2009/06/faqs-on-church-and-state.html

***

Reginaldvs Cantvar
Feast of St. Elizabeth of Portugal, Queen, Widow, A.D. 2009

Rebuttal of “Religious Freedom FAQ's”

http://opuscula.blogspot.com/2009/06/religious-freedom-faq.html

Here are three comments which I have submitted to Mr. Keith Gurries’s Opuscula blog. I recommend that you read his “Religious Freedom FAQ’s” post first, otherwise the comments might be difficult to follow:

***

Comment 1 of 2

Mr. Gurries,

You say that

[Q1.] “In other words, a person following the dictates of an honestly erroneous conscience acts in true moral freedom – in spite of his error.”

But the action of disseminating his errors is still objectively evil, and therefore can only ever be the object of tolerance on the part of his countrymen and of the State.

“The reason is that the moral law commands us to obey a certain conscience under pain of sin – even when honestly erroneous.”

True, but we must be careful to avoid what Msgr. Lefebvre rightly denounced as a false symmetry between being forced to disobey one’s conscience and being prevented from obeying one’s conscience.

“Furthermore, the moral law confers the corresponding moral right (the means) to fulfill ones moral obligations.”

But isn’t it circular reasoning, a sort of tautology, to assert that one’s duty to obey one’s conscience implies a right to obey one’s conscience?

Q3. “… sometimes we tolerate error or evil for the sake of a higher good or a superior right (e.g., toleration in order to respect the rightful domain of conscience …”

But to prevent someone doing what he has perceived to be good, but which is objectively evil, implies no violation of his conscience, since an imprisoned heretic, for instance, continues to conform his will to what his intellect has judged to be good (the dissemination of his errors), and is just biding his time till he has the opportunity to resume his ealier activities.

“[Suarez writes that] The reason is that such observances do not in themselves violate the natural law, and therefore, the temporal power of even a Christian ruler does not confer a right to forbid them.”

But they violate the objective truth and, in a society whose members are united in the Catholic Faith, it harms the common good, which is the proper end of the State.

“[Suarez writes that] Such action would be based on the fact that what is being done goes contrary to the Christian Faith, but that is not enough to compel those who are not subject to the spiritual authority of the Church.”

But the State, in repressing offences against the Catholic religion, does not compel offenders to submit to the Church’s authority; it merely prevents them from harming the common good.

“[Suarez writes that] This opinion is also supported by the fact that such a ban would involve, to some extent, forcing people to accept the Faith; and that is never permitted.”

How can preventing someone from acting on his conscience possibly imply, to even the slightest extent, “forcing people to accept the Faith”? The imprisoned heretic continues to conform his will to the dictates of his conscience.
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Comment 2 of 3 (sorry, this’ll have to go to three comments)

Q4. “Where do we draw the “due limits” to religious freedom?”

Leo XIII’s answer in Libertas was unequivocal:

33. … But if, in such circumstances, for the sake of the common good (and this is the only legitimate reason), human law may or even should tolerate evil, it may not and should not approve or desire evil for its own sake; …
34. … [T]he tolerance of evil which is dictated by political prudence should be strictly confined to the limits which its justifying cause, the public welfare, requires. Wherefore, if such tolerance would be injurious to the public welfare, and entail greater evils on the State, it would not be lawful; for in such case the motive of good is wanting. …
[my emphasis]

Dignitatis Humanæ, however, treats the common good as a set of certain elements (“matters”), and identifies a strict subset of those elements as providing the proper criterion for whether or not to repress offences against the Catholic religion:

“[…] These matters [listed in D.H.’s preceding paragraph] constitute the basic component of the common welfare: they are what is meant by public order. For the rest, the usages of society are to be the usages of freedom in their full range: that is, the freedom of man is to be respected as far as possible and is not to be curtailed except when and insofar as necessary.”
[section 7.]

That the common good is, for D.H., one set of elements composed of two strict subsets—one, the ‘just public order’, and the other, whatever is not contained in the ‘just public order’—is clear from the mention of a certain subset of “matters” (the ‘just public order’), with other matters—“the rest”—not contained therein. So for D.H., the proper criterion is not the common good in all its elements, but rather, the strict subset of elements called the ‘just public order’. And the following portion is of particular interest:

“the freedom of man is to be respected as far as possible and is not to be curtailed except when and insofar as necessary”

So activity covered by the strict subset of elements belonging to the common good but outside the ‘just public order’ subset is to receive ‘as much freedom as possible, as little curtailment as necessary’. How is one to interpret this slogan? Not ‘in the light of Tradition’, surely, since it has no place in Tradition. Quite the contrary: if the Traditional doctrine were to be encapsulated in a nutshell it would be to invert this slogan to something along the lines of ‘as much curtailment as possible, as little freedom as necessary’. Bizarrely, this is clear from Msgr. de Smedt’s quotation from Ci riesce in his relatio of 19 November 1963:

“Hence the affirmation: religious and moral error must always be impeded, when it is possible, because toleration of them is in itself immoral, is not valid absolutely and unconditionally.”
(my emphasis,
Michael Davies, The Second Vatican Council and Religious Liberty, Appendix IV, 1992 (1999), The Neumann Press, Long Prairie, Minnesota, p. 293)
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Comment 3 of 3

So it is only plausible to do what Msgr. Tissier de Mallerais argued recently and interpret the document according to the meaning of its authors. And in fact, that bit at the end of D.H.’s section 7. derives from an article by none other than Fr. John Courteney Murray S.J. in Theological Studies, XXV, p. 530. PRF, p. 4:

“In what concerns religious freedom, the requirement [for knowing whether “the public powers are authorized to intervene and to inhibit forms of religious expression”] is fourfold: that the violation of the public order be really serious; that legal or police intervention be really necessary; that regard be had for the privileged character of religious freedom, which is not simply to be equated with other civil rights; that the rule of jurisprudence of the free society be strictly observed, scil., as much freedom as possible, as much coercion as necessary.”
(my emphasis,
quoted in Davies, op. cit., p. 78)

So D.H.’s ‘as much freedom as possible, as little curtailment as necessary’ is little more than a liberal slogan, it is “the rule of jurisprudence of the free society”, incompatible with the juridical criteria proper to the best plan for society, that is, the Catholic society.

So to the question of whether the State can repress heretical/schismatic activity that is harmful to the common good in the common good’s non-‘just public order’ component, the likes of Msgr. von Ketteler can answer an unambiguous ‘yes’. But the devotee of Dignitatis Humanæ can only answer that such activity must receive ‘as much freedom as possible, as little curtailment as necessary’.

Q5. “Man is a social being according to his nature and therefore he has the duty and corresponding right to worship in private and in public.”

There is strange logic here; man is a social being, therefore he has a right to generate occasions of sin for his neighbours?!

“Furthermore, to ban the public expression of all false worship is to apply another form of coercion as Suarez noted: “…such a ban would involve, to some extent, forcing people to accept the Faith, and that is never permitted.””

This remains a pure assertion; how does Suarez explain the notion that “such a ban would involve, to some extent, forcing people to accept the Faith”? He does not seem to elaborate on this here or in quotations from him in the earlier post in which you quote from him at length.
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Reginaldvs Cantvar
Vigil of St. John the Baptist, A.D. 2009