A Church That Can and Cannot Change: The Development of Catholic Moral Teaching
by John T. Noonan, Jr.
University of Notre Dame Press 280 pp. $30

Doctrinal development follows a different course in social ethics than in the realm of revelation. The formulation of revealed truth develops through the discernment of new truths that are formally implicit in the apostolic deposit. Such truths, once proclaimed by the Church as divinely revealed, are dogmas and must be held by all as matters of divine and Catholic faith. Social teaching, on the other hand, consists of behavioral norms for social conduct in conformity with the gospel. While the principles remain constant, the proximate norms are not free from contingency because society itself is in flux. Specific regulations rarely have the universal and permanent character that belongs to dogma. Development in social teaching is not simply a matter of articulating what was always implicitly taught but a way of applying the teaching to new social situations.

Pope John Paul II noted the interplay of continuity and change in several of his social encyclicals. In the 1987 Sollicitudo Rei Socialis , for example, he declared that the Church’s teaching in the social sphere exhibits both permanence and constant renewal: “On the one hand it is constant , for it remains identical in its fundamental inspiration, in its ‘principles of reflection,’ in its ‘criteria of judgment,’ in its basic ‘directives for action,’ and above all in its vital link with the Gospel of the Lord. On the other hand, it is ever new , because it is subject to the necessary and opportune adaptations suggested by the changes in historical conditions and by the unceasing flow of the events which are the setting of the life of people and society.”

John T. Noonan, Jr., an accomplished scholar in the history of law and ethics and a distinguished federal judge, has devoted several decades of his life to studies in this complex area. He has published noteworthy books on contraception, abortion, usury, bribery, religious freedom, and the power of the Holy See to dissolve marriages. His latest, A Church That Can and Cannot Change , deals primarily with slavery, but in later chapters he sets forth more briefly his views on usury, religious freedom, and divorce. The overarching thesis seems to be that in all these areas social change makes it possible for Christians to overcome the blindness that had previously afflicted their moral vision. The doctrinal change, in Noonan’s estimation, is in many cases an about-face, repudiating the erroneous past teaching of the magisterium itself.

More than half of the book deals with slavery, a subject that Noonan has researched in considerable detail. Slavery was practiced by almost every known society until modern times. Throughout the biblical era, Noonan shows, slavery was taken as a given, although the Israelites practiced rather mild forms of slavery and did not permanently enslave their compatriots. Jesus, though he repeatedly denounced sin as a kind of moral slavery, said not a word against slavery as a social institution. Nor did the writers of the New Testament. Peter and Paul exhort slaves to be obedient to their masters. Paul urges Philemon to treat his converted slave Onesimus as a brother in Christ. While discreetly suggesting that he manumit Onesimus, he does not say that Philemon is morally obliged to free Onesimus and any other slaves he may have had.

For many centuries the Church was part of a slave-holding society. The popes themselves held slaves, including at times hundreds of Muslim captives to man their galleys. Throughout Christian antiquity and the Middle Ages, theologians generally followed St. Augustine in holding that although slavery was not written into the natural moral law it was not absolutely forbidden by that law. St. Thomas Aquinas, Luther, and Calvin were all Augustinian on this point. Although the subjection of one person to another ( servitus ) was not part of the primary intention of the natural law, St. Thomas taught, it was appropriate and socially useful in a world impaired by original sin.

The leaven of the gospel gradually alleviated the evils of slavery, at least in medieval Europe. Serfdom did not involve the humiliation and brutality people today ordinarily associate with slavery. Moral theologians recognized that slaves, unlike mere chattels, had certain rights even against their masters, who no longer had over them the power of life and death, as had been the case in pagan antiquity.

For St. Thomas, slaves ( servi ) had the right to food, sleep, marriage, and the rearing of their children. Provision had also to be made for them to fulfill their religious duties, and they were to be treated with benevolence. With the conquest of the New World and the enslavement of whole populations of Indians and Africans, theologians such as Bartolomé de Las Casas and Cajetan began to object to the injustices of subjecting conquered peoples and of engaging in the lucrative slave trade. Some prominent Catholics of the early nineteenth century, including J.M. Sailer, Daniel O’Connell, and the Comte de Montalembert, together with many Protestants, pressed for the total abolition of slavery.

Throughout this period the popes were far from silent. As soon as the enslavement of native populations by European colonists started, they began to protest, although Noonan gives only a few isolated examples. Eugene IV in 1435 condemned the enslavement of the peoples of the newly colonized Canary Islands and, under pain of excommunication, ordered all such slaves to be immediately set free. Pius II and Sixtus IV emphatically repeated these prohibitions. In a bull addressed to all the faithful of the Christian world Paul III in 1537 condemned the enslavement of Indians in North and South America. Gregory XIV in 1591 ordered the freeing of all the Filipino slaves held by Spaniards. Urban VIII in 1639 issued a bull applying the principles of Paul III to Portuguese colonies in South America and requiring the liberation of all Indian slaves.

In 1781 Benedict XIV renewed the call of previous popes to free the Indian slaves of South America. Thus it was no break with previous teaching when Gregory XVI in 1839 issued a general condemnation of the enslavement of Indians and Blacks. In particular, he condemned the importation of Negro slaves from Africa. Leo XIII followed along the path set by Gregory XVI.

Although the popes condemned the enslavement of innocent populations and the iniquitous slave trade, they did not teach that all slaves everywhere should immediately be emancipated. At the time of the Civil War, very few Catholics in the United States felt that papal teaching required them to become abolitionists.

Bishop John England stood with the tradition in holding that there could be just titles to slavery. Bishop Francis P. Kenrick held that slavery did not necessarily violate the natural law. Archbishop John Hughes contended that slavery was an evil but not an absolute evil. Orestes Brownson, while denying that slavery was malum in se , came around to favor emancipation as a matter of policy.

In 1863 John Henry Newman penned some fascinating reflections on slavery. A fellow Catholic, William T. Allies, asked him to comment on a lecture he was planning to give, asserting that slavery was intrinsically evil. Newman replied that, although he would like to see slavery eliminated, he could not go so far as to condemn it as intrinsically evil. For if it were, St. Paul would have had to order Philemon, “liberate all your slaves at once.” Newman, as I see it, stood with the whole Catholic tradition. In 1866 the Holy Office, in response to an inquiry from Africa, ruled that although slavery ( servitus ) was undesirable, it was not per se opposed to natural or divine law. This ruling pertained to the kind of servitude that was customary in certain parts of Africa at the time.

No Father or Doctor of the Church, so far as I can judge, was an unqualified abolitionist. No pope or council ever made a sweeping condemnation of slavery as such. But they constantly sought to alleviate the evils of slavery and repeatedly denounced the mass enslavement of conquered populations and the infamous slave trade, thereby undermining slavery at its sources.

In A Church That Can and Cannot Change , Noonan gives only a few glimpses of this complex history. He correctly notes that the Catholic magisterium in past centuries never made an absolute condemnation of slavery as such. But he contends that John Paul II reversed the traditional teaching. In support he quotes a statement of John Paul II in 1992. Speaking at the infamous “House of Slaves” on the Island of Gorée in Senegal, from which innumerable slaves had been exported, he declared: “It is fitting to confess in all truth and humility this sin of man against man, this sin of man against God.” Noonan adds: “What this confession did not remark was how recently the sin had been discovered.” But if we look up the quotation, we will find that the pope is here speaking of the slave trade, which had repeatedly been condemned. Far from changing the doctrine, John Paul is explicitly reaffirming the position of Pope Pius II, whom he quotes as having declared in 1492 that the slave trade was an enormous crime, magnum scelus .

Noonan has one further argument for doctrinal change. In 1993, in his encyclical Veritatis Splendor , John Paul II took, from Vatican II’s pastoral constitution on the Church in the modern world, a long list of social evils: “homicide, genocide, abortion, euthanasia and voluntary suicide . . . mutilation, physical and mental torture and attempts to coerce the spirit; whatever is offensive to human dignity, such as sub-human living conditions, arbitrary imprisonments, deportation, slavery, prostitution and trafficking in women and children; degrading conditions of work which treat laborers as mere instruments of profit, and not as free responsible persons.” Where Vatican II had called these practices “shameful” ( probra ), John Paul II calls them “intrinsically evil.” In the same encyclical the pope teaches that intrinsically evil acts are prohibited always and everywhere, without any exception.

Did John Paul II, by including slavery in his list of social evils, effect the revolution in Catholic moral theology that Noonan attributes to him? It seems to me that if he had wanted to assert his position as definitive he would have had to say more clearly how he was defining slavery. He would have had to make it clear that he was rejecting the nuanced views of the biblical writers and Catholic theologians for so many past centuries. If any form of slavery could be justified under any conditions, slavery as such would not be, in the technical sense, intrinsically evil.

According to the logic of Noonan’s argument, whatever holds for slavery would have to be said for deportations, subhuman living conditions, and degrading conditions of work. But could not degrading or subhuman conditions be inevitable, for example, after some great natural disaster in which mere survival is an achievement? Individual deportations of undesirable aliens occur continually as a matter of national policy today; mass deportations could perhaps be necessary for the sake of peace and security. If pressed, I suspect, the pope would have admitted the need for some qualifications, but he could not have specified these without a rather long excursus that would have been distracting in the framework of his encyclical. So far as I am aware, he never repeated his assertion that slavery is intrinsically evil. Neither the Catechism of the Catholic Church nor the recent Compendium of the Social Doctrine of the Church , in their discussions of slavery, speaks so absolutely.

For all these reasons Noonan’s case for a reversal of doctrine is unconvincing. Jacques Maritain provided some helpful distinctions in his book The Rights of Man and Natural Law . Absolute bondage, he asserted, is opposed to natural law, considered in its primary requirements, and thus is never justifiable.

But certain attenuated forms of servitude, such as serfdom, are not opposed to natural law except in its secondary requirements or aspirations. These lesser forms of servitude, linked to collective life in a fallen world and to the painful aspects of human labor, cannot be eliminated except by degrees. As machinery and technology develop, servile labor becomes less necessary. With more sophisticated forms of economic and social organization, it becomes possible and indeed imperative to diminish servitude and to abolish slavery in the usual sense of the word. In the “new heavens” of the resurrection every form of servitude will disappear.

Maritain’s flexible view of human rights, here applied to slavery, gives a needed correction to Noonan’s position and clarifies what John Paul II probably had in mind. Radical forms of slavery that deprive human beings of all personal rights are never morally permissible, but more or less moderate forms of subjection and servitude will always accompany the human condition. The elimination of slavery, possible in our time, corresponds to a natural dynamism of the human spirit toward freedom and personal responsibility. The goal of full and uninhibited freedom, however, is an eschatological ideal never fully attainable within history.

In his fifteen-page section on usury Noonan presents quite fairly the interplay between moral teaching and the emergence of new economic systems. The biblical strictures on usury were evidently motivated by a concern to prevent the rich from exploiting the destitution of the poor. But when capitalists of early modern times began to supply funds for ventures of industry and commerce, the situation became different. Moralists gradually learned to place limits on the ancient prohibition, so as to allow lenders fair compensation for the time and expenses of the banking business, the risks of loss, and the lenders’ inability to use for their own advantage what they had loaned out to others.

These concessions do not seem to me to be a reversal of the original teaching but rather a nuancing of it. The development, while real, may be seen as homogeneous. In view of the changed economic system the magisterium clarified rather than overturned its previous teaching. Catholic moral teaching, like contemporary criminal law, still condemns usury in the sense of the exaction of unjust or exorbitant interest.

Noonan’s third case is religious freedom. Until modern times the primary subject of religion, normally speaking, was the social group rather than the solitary individual. Religion provided the moral and cultural framework in which the society functioned. The state professed a particular religion and expected the citizens to adhere to it, while making exceptions for certain minorities who were treated with varying degrees of tolerance. An attack upon the established religion was counted as a civil offense.

And so, for most of its history, Christianity functioned within a social system in which civil authorities upheld the religion of the people. The expectation was that the state would support the true religion. The Second Vatican Council still teaches, in its “Declaration on Religious Freedom,” that it is legitimate for the constitutional order of society to give special recognition to one religious body such as the Catholic Church.

In the nineteenth century liberal secularists appealed to the principle of freedom of conscience to justify a complete disregard for God and religion on the part of civil authorities. Liberalism promoted a secular or laicist society in which religion had no social standing and was reduced to a purely private matter. The “separation of Church and State,” in this framework, would authorize the expropriation of parochial schools, the suppression of religious orders, and state control over the appointment of bishops and pastors”steps that were actually being taken in countries that followed the Jacobin leaders of the French Revolution. In that situation popes such as Gregory XVI and Pius IX condemned sweeping proclamations of the right to religious freedom. They were responding to militant anticlericalism; they were not addressing freedom of belief and expression as understood in American civil law. When denouncing the laicist concept of separation between Church and State, they did not have in mind the American system, which generally respects the freedom of the Church.

Still less were the popes rejecting the Church-State relation later approved by Vatican II in its declaration on religious freedom. Vatican II explicitly “leaves intact the traditional Catholic teaching on the moral obligation of individuals and societies toward the true religion and the one Church of Christ.”

Nowhere does it suggest that there can be a right to hold or teach religious error. The Catechism of the Catholic Church , summarizing current Catholic doctrine, explains: “The right to religious liberty is neither a moral license to adhere to error, nor a supposed right to error, but rather a natural right of the human person to civil liberty, i.e., immunity, within just limits, from external constraint in religious matters by political authorities.”

Noonan, arguing the case for a reversal, overlooks these important qualifications. As a historian he might be expected to situate documents like the Syllabus of Errors in their historical context, as he fails to do. His own interpretation of Vatican II is curiously similar to that of the reactionary Archbishop Marcel Lefebvre, who went into schism because he thought of the council as a departure from the constant teaching the Church. While there has surely been a development of doctrine in this sphere, John Courtney Murray, one of Noonan’s heroes, ended a lengthy article on the subject with the judgment: “The legitimate conclusion is that between Leo XIII and the Second Vatican Council there was an authentic development of doctrine in the sense of Vincent of Lerins, ‘an authentic progress, not a change of the faith.’”

The change in teaching might be called, in the language of John Paul II, a “necessary and prudent adaptation.” The Church has applied the unchanging principles of the right to religious freedom and the duty to uphold religious truth to the conditions of an individualist age, in which almost all societies are religiously pluralist. Under such circumstances the establishment of religion becomes the exception rather than the rule. But the principle of noncoercion of consciences in matters of faith remains constant.

The last section of Noonan’s book deals with divorce. He does not here propose any change in the Church’s teaching or practice with regard to consummated sacramental marriages, which are indissoluble. But he traces a progressive development in the Church’s teaching about the possibilities of dissolving nonsacramental marriages.

From the time of St. Paul the “privilege of the faith” has been gradually expanded to include more and more cases. Noonan suggests that a new forward step would be for the Church to recognize all divorces of nonsacramental marriages granted by the civil courts.

It will be for moral theologians and canon lawyers to weigh this proposal. Although I cannot speak as a specialist in the field, I have my doubts. It seems to me that the teaching of the New Testament and the good order of society demand greater stability in marriages than the civil courts today ensure in the United States. For her own sacramental practice the Church has to decide in individual cases whether people are free to marry in the Church and participate in her life. These decisions require a moral judgment about whether the previous marriage was valid and whether it can or should be dissolved. I do not see how the Church can simply delegate this judgment to civil courts, which often grant “no-fault divorces” without reference to divine or natural law.

All in all, Noonan has written a stimulating book dealing with questions of great importance. He shows himself to be knowledgeable about the history of the four problems here treated. He brings to bear many of the skills of a historian, a civil lawyer, a canon lawyer, and to some degree those of a theologian. Anyone who wishes to question Noonan’s conclusions must at least take account of the facts he has unearthed. He renders no small service in presenting the most powerful objections against continuity that can be raised.

The reader should be warned, however, that Noonan manipulates the evidence to make it seem to favor his own preconceived conclusions. For some reason, he is intent on finding discontinuity”but he fails to establish that the Church has reversed her teaching in any of the four areas he examines.

Avery Cardinal Dulles, S.J. , holds the Laurence J. McGinley Chair in Religion and Society at Fordham University.