In several earlier posts on this blog I have presented:

  1. The general Christian understanding of obedience and disobedience to the civil magistrate –
  2. The classical Anglican position on obedience and disobedience –
  3. The dangers of a doctrine permitting active disobedience –
  4. The positive spiritual value in limiting the right to resistance to passive disobedience in the form of refusal to obey a command to do something positively immoral:  a value I called the evidential power of martyrdom:

In this post I would like to consider critically a theory that would permit much more active disobedience, namely the proposal that active disobedience be considered potentially justifiable on analogy with a just war.  Somewhat different, although related, and something I will consider on another occasion, is the idea that rebellion can be justified as a form of self-defense. 

I would like to raise the challenging alternative of rebellion as a form of just war through some comments and qualifications offered by Canon Matthew Kirby in Australia to my third post mentioned above.    

Canon Kirby notes the scope for active resistance opened by the explicitly limited nature of modern, liberal regimes:

…in the West…[g]overnments do not claim unrestrained authority, instead enshrining certain natural and universal human rights, and assigning these a certain priority legislatively. Those retaining an established Church also sometimes have constitutional principles implying the priority of God’s Law.  Thus, modern Christians in these contexts have access to explicit and implicit legal or meta-legal covering for actively disobeying one law to obey a higher one.

This observation is, I think, largely correct.  When a regime either positively bestows or claims to discern a naturally or supernaturally grounded right to challenge in particular ways the same regime’s authority or actions, the raising by an individual or by a group of such a supernatural, natural, or positive challenge is not rebellion or active resistance in the traditional sense.  If the magistrate says, for example, ‘You may go to court if you believe my action X is unlawful,’ then exercising that permission involves neither sinful resistance to the magistrate nor impermissible rebellion against the regime. 

Canon Kirby’s further argument deserves to be presented at some length.  Canon Kirby later said that his comments were not a final, polished argument, but more a matter of thinking out loud.  But his argument is clear and polished enough to deserve presentation:

As to the argument that just because some modern Western democracies permit active dissent, Christians are not so permitted due to their obligation of obedience, this misses an essential point:  these democracies have explicitly made obedience partly conditional by those very provisions.  In other words, their laws, taken as a corpus, deny their universal, absolute obligation, so that certain ‘acts of disobedience’ are not disobedient simpliciter. Indeed, the American Constitution and Declaration of Independence seem to assume a fundamental right or even obligation to armed rebellion against tyranny, which potentially condition what obedience is owed to lesser laws and lawmakers.

This is to some degree the initial point that I have already conceded.  The Christian normally and licitly may exercise to the full his right to question and test civil impositions and demands and similar forms of ‘resistance’ to the magistrate that the regime and its constitution themselves permit.  This is, as Canon Kirby says, not disobedience simpliciter

The exercise of such rights, made lawful by the regime’s principles and very constitution, is normal, political, and legal behavior.  A grave problem would only arise if, despite the right to vigorous dissent and lawful resistance, the regime’s actual development produces something approaching tyranny.  If the regime itself claims to authorize the overthrow of itself or armed rebellion against itself, then that authorization does not flow from the regime itself, but from some claim to what Canon Kirby calls ‘a fundamental right’:  a right prior to or more fundamental than the regime.  At that point, I think, Christians would be thrown back practically on basic principles and obligations prior to the laws and rights granted under a regime’s constitution.  In the Lockean system when the purposes of civil societies are utterly frustrated, the individual may be returned to a kind of pre-political state in which he is free to compact again with others to reform a regime that will better promote life, liberty, and property.  But is the Christian free to avail himself of a supposed prior right to rebel against the failing regime, simply because the regime’s own theory may suffice to assert such a right?    

Canon Kirby continues,

Indeed, the whole approach in the essay above [item 3 in my opening list above] appears to presume that there can be no conflict of laws, and that there is no principle of the hierarchy of law that would need to be applied in problematic cases.  But, in fact, such conflicts are often present and Constitutions do trump statutory law.

Again in part I agree with Canon Kirby:  within the regime and its various kinds of positive law there can certainly be such conflicts, including the example Canon Kirby himself notes between statutory and constitutional laws. 

Furthermore, a regime’s laws may conflict with higher levels of law such as the divine and natural laws, and the conflict may be clear and certain.  In such cases, the regime’s law is objectively void as a matter of law:  positive law that contradicts natural law itself lacks the form of law, is unlawful, and does not oblige as law.  For example, the law of a regime that purports to permit or even subsidize directly willed abortion is intrinsically void.  Such a positive law cannot remove the natural guilt from, e.g., the abortionist, who commits unjustified homicide.  Nor would such a law necessarily shield later prosecution of a party guilty of gross violation of the natural law, anymore than concentration camp guards are excused from a charge of murder or genocide by a plea of following orders.  An agent of a regime who appeals to prevailing positive laws is not shielded from committing sin or from future possible just prosecution if he or she gravely violates divine or natural law. 

Christians are always aware of such possible conflict of laws.  I too am well-aware that legislators and magistrates of all sorts may purport to permit or demand things that are in fact unlawful in the light of natural and divine law.  Indeed, the whole problem of resistance arises precisely because of such conflicts.  The Christian may and must licitly refuse to perform a mandated act if it conflicts with a higher law.  The question is precisely the proper limits to such refusal and resistance. 

In fact, I think, Canon Kirby knows that in passive disobedience theory this right to refusal exists but is in general limited to passive refusal.  Therefore, Canon Kirby continues his comments:

However, his Grace might reply, it is not up to ordinary persons and their private judgement to ascertain when a law is unconstitutional, nor is the application of force by them ever justified in resolving such conflict:  only the justice system can do that. But here is the problem.  Individuals can tell if a law or action is manifestly unconstitutional, and can sometimes discern if the justice system is so manifestly corrupt that it has not obeyed or will not obey the higher law.  Certainly, this can be true of individual Christians in the case of erroneous decisions or laws by fallible local or regional ecclesial authorities.  Otherwise we deny that a Roman Catholic Christian in the past would have had the right to reject with certainty judicial torture as intrinsically evil against the judgement of his Magisterium.

These comments, however, really do not touch, or at least do not decisively undermine, the passive obedience theory.  Passive obedience theory affirms the subjective authority of the properly formed individual conscience and asserts the clear duty and right of the individual to refuse to perform acts that he believes violate a higher law such as that of God or nature.  Private judgement very much does suffice to justify and even demand passive disobedience to a positively unjust demand, whether of a Church or state.

The case of abortion, again, provides clear illustration.  In the United States the positive law purports to permit and render licit hundreds of thousands of abortions annually.  The law in question clearly violates natural and divine law and is null.  All persons cognizant of the natural law, even private individuals, in this matter may and must refuse most forms of cooperation with abortion no matter the cost to themselves.  The question before us is not such refusal, which is entirely legitimate and necessary.  Rather this is the question before us:  May persons with such rightly formed consciences actively resist or rebel against the regime that permits such monstrous iniquity?

Canon Kirby suggests that the capacity and authority in the individual which I have just acknowledged again will lead my theory into difficulties:

[I]f individuals can recognise manifest immorality or unlawfulness in despite of the judgement of higher authorities ecclesially, how much more civilly.  Therefore, it seems there may be situations when a Christian could legitimately determine a civil power had become illegitimate by its lawlessness.  Once they determined this, their choice between continued submission, passive disobedience or active rebellion would seem to be governed by prudential principles analogous to those for jus ad bellum.

Here is the key point, I think, in this particular part of the discussion.  Canon Kirby suggests an analogy between the just war tradition and active rebellion (as contrasted with submission and merely passive disobedience) in the case of lawless regimes.  The suggestion seems to be that the possibility of just war is similar to the possibility of just rebellion. 

We will return to this analogy in a moment.  But first I assert that the general presumption against rebellion suggests that regime lawlessness does not suffice to permit active rebellion.  Americans have constitutional rights and protections.  But if the American regime dissolves into rank tyranny, its constitution and laws are under their own terms no longer a sufficient basis for normal, political, or lawful behavior.  But the Christian obligation to obedience to established authority, even if tyrannical, normally would remain.  The governing meta-political principles in such a case would flow, not from the American Constitution and Bill of Rights or Declaration of Independence or from international conventions and treaties or the United Nations Charter, but from the natural and divine laws, including the obligation to disobey only passively unjust commands from the powers that be.  A tyrannical America would little different from Rome under Nero, Domitian, or Diocletian.  Ancient Greece and Rome as well as modern America understood that tyrants act against natural and divine laws, which laws suffice to condemn tyrannical outrages.  Socrates refutes Thrasymachus when he asserts, in essence, that might makes right.  Augustine condemns Nero.  But Augustine rejects rebellion nonetheless.  That American constitutional theory might provide a theoretical justification of its own for rebellion does not make the Christian’s critique of gross tyranny any stronger or justify rebellion by a Christian in such a case.

The analogy between justified rebellion and just war is fleshed out by Canon Kirby somewhat at another point:

Just War theory applied to rebellions or active disobedience might place the decision-making locus with the demos insofar as the magistrate has abandoned fidelity to the law, on the principle lex rex.  [T]his traditional calculus would also forbid rebellion where the evil consequences outweighed the good and where there was little chance of success.  And that would seem to rule out most proposed revolutionary action in practice.

I believe that Canon Kirby on reflection is somewhat uncomfortable with this conclusion.  He says clearly, as would I, that ‘opening the door to active disobedience’ can quickly make that option ‘the practical default’ response to difficult situations.  But the analogy between just war and just rebellion has occurred to others and certainly deserves consideration.  The fact that acceptance of the analogy might lead to some bad tendencies does not by itself settle the matter.  If the just war theory may properly apply to cases of rebellion against a tyrannical regime, then that very fact would help to limit the danger that rebellion will become a common and chaotically frequent resort:  the just war theory includes limiting qualifications, even if these are often imperfectly applied by those invoking the theory. 

While thinking about these matters, I began reading a history of the Cristero War by a Roman Catholic priest, Msgr. James T. Murphy.[i]  The Cristero War in Mexico in the late 1920s may be best known to English-speaking readers through Graham Greene’s great novel, The Power and the Glory.  In brief, the militantly anti-Catholic government of Plutarco Elias Calles, building on the anti-clerical Mexican constitution of 1917, began a program of such repression and brutality that a series of rebellions, mostly in the western and central highland areas of Mexico, began in 1926 and lasted until 1929.  In this Cristero War some 200,000 Mexican died, if one includes the Cristeros themselves, government troops, and civilians (Murphy, p. 70). 

The Cristero War deserves to be much better known by English-speakers than it is.  For one thing, the repression of the Church and the martyrdom of bishops, priests, and faithful, by a regime that claimed the heritage of the Enlightenment, is something we are likely to become more familiar with ourselves in the coming years.  But for present purposes, I note that Msgr. Murphy makes an analogy similar to Canon Kirby’s between just war theory and the Cristero rebellion against the Calles dictatorship.  Canon Kirby is not responsible for Msgr. Murphy’s argument or its weaknesses.  Nonetheless, the similarity in their basic proposal is interesting, and studying the longer proposal in Murphy might help illuminate the analogy in general.

Murphy’s initial presentation of ‘Catholic just war theory’ is a mixture of correct information and of, I think, incorrect or very misleading silences and assumptions.  The initial statement of the theory’s content is an example of such a misleading assumption:  ‘people have a right to defend themselves with armed rebellion if certain conditions have been fulfilled’ (Muphy, p. 68).  But traditional just war theory is not concerned with private action or even with a group rebellion, but with war.  War is an action of states or at least of large, organized, public groups approaching the character of states.  Murphy has confounded war and rebellion.  This confusion assumes what is in fact in question in my conversation with Canon Kirby:  are some rebellions in fact sufficiently analogous to a war to permit the application to some of them of the rubric ‘just war’ and to permit therefore the prudential judgement of whether or not there are sufficient grounds to say that one may resist an evil magistrate with a kind of jus ad bellum?

Murphy states most of the traditional criteria for determining jus ad bellum correctly if briefly and in non-technical language: 

…nonviolent means of resistance must have failed; the rebellion must have a reasonable chance of success; the good to be achieved must outweigh the destruction and loss of life the rebellion would bring.

It is arguable that the very important traditional requirement that a just war must have an initially just cause is also implied by Murphy when he states that ‘armed rebellion was indeed justified given the atrocities of the Calles state.’ (Murphy, p. 68)  One of the chief requirements for justice in going to war, however, is passed over by Murphy in silence.  That is, the war must be declared clearly and formally by the supreme authority that has the constitutional right to make such a declaration.[ii]  Furthermore, this formal declaration must itself be the penultimate step before the actual commencement of hostilities, so that the declaration itself is effectively a final attempt at a nonviolent resolution to the fundamental problem.  War must be an ultimate, last resort, and it is not a last resort if it commences without a formal declaration of war as a penultimate resort. 

By omitting mention either of a formal declaration of war by the legitimate civil authority and the matter of last resort, Murphy completes his elision of traditional differences between rebellion and war.  In effect, if Murphy were directly arguing Canon Kirby’s position, one would say he is guilty of question-begging:  he assumes the matter that is in question between Canon Kirby and me.[iii]

Murphy correctly states that just war theory at least dates ‘back to the writings of Saint Augustine in the fourth century’ (Murphy, p. 68), though ‘early fifth’ would be more accurate.  Murphy, however, does not mention, or perhaps does not know, how strongly Saint Augustine reprehends and rejects rebellion even against such wicked tyrants as Nero (for which see the third post noted at the beginning of this one).  Saint Augustine presents arguments for just war but condemns rebellion against evil rulers. 

These elisions and confusions are particularly significant, I think, because they themselves would help to resolve historical and personal problems illuminated clearly by Msgr. Murphy’s account.  The main actor in the story of the Cristero rebellion at the point in question was a devout lawyer, since beatified by Pope Benedict XVI in 2005, named Anacleto González Flores.  Blessed Anacleto was a proponent of nonviolent resistance to the Calles regime and an admirer of Mahatma Gandhi (Murphy, p. 66).  Only reluctantly did Blessed Anacleto come to endorse the violent Cristero rebellion, and then only against the strong advice of his beloved bishop, Francisco Orozco y Jiménez, archbishop of Guadalajara (Murphy, p. 69).[iv] 

In fact, however, Blessed Anacleto’s language and argument are consistently for martyrdom, for offering up oneself: 

…stop dreaming of places of honor, military triumphs, braid, luster, victories, and authority.  Mexico needs a tradition of blood in order to ensure its free life of tomorrow….’ (Murphy, p. 70)

The ‘blood’ in question was not the blood of war and resistance, but of Calvary and martyrdom.  It is a sadness that under the extreme circumstances of persecution, Blessed Anacleto did not follow the advice of his bishop, but instead let himself be persuaded to support the Cristero War.

In fact, the war had no reasonable chance of success:  the ragtag rural rebels were matched against the well-armed national army of a large state under the Calles regime.  The case of the Cristero War, therefore, would fail one clear criterion for just war as stated by Murphy:  ‘a reasonable chance of success’.  And it is difficult to see how 200,000 deaths, many civilian, could be proportionate to the good achieved.  The blood of martyrs, given to atone for and convert the evil of the Calles regime, might have flowed without all the deaths of civilians and of hapless regime flunkies.  Blessed Anacleto, happily, never took up arms himself.  His martyrdom was unsullied by any mixture of actual violence on his part.  But his moral support in the end for the Cristero War seems to have been on most levels a mistake. 

This all, of course, does not prove that there might not be cases closer to what Canon Kirby suggests might be desirable, but perhaps it is suggestive.  In my third and fourth posts noted above I mention several cases of futile and failed or counterproductive rebellions.  The Cristero War seems to be another example of active resistance that produced little good and much harm.  Many victims of the Calles regime were in fact martyrs.  They did not need a war to achieve that status. 

The blood of the martyrs is the seed of the Church.  The blood of rebellion is not. 

After reviewing the preceding, Canon Kirby summarizes his position again:

My central point is that once a society has, even nominally, legally committed itself to recognising as fundamental overarching human rights, it has arguably created a metalegal authority that *by its own binding principles* limits its rights as a state and implicitly annuls certain manifestly evil laws. This renders active resistance to such laws when enforced the legal equivalent of active resistance to a criminal gang.

But the laws, if they contradict natural and divine law, already are null, whether the state in question is pagan, medieval, or modern. The comparison of an evil state to a criminal gang recalls a similar comparison by Saint Augustine in a famous passage in The City of God.   In any case, the recognition of overarching principles of natural law and justice which limit the just authority of the state and of magistrates certainly was known to Plato, Aristotle, Augustine, and Saint Thomas.  The assertion of regime self-limitation under Enlightenment principles seems unlikely to serve as greater justification for rebellion, than the much better-founded limits to such worldly authority founded in classical natural law and Christian political science. 

Does the anti-theological ire of the Enlightenment thinkers really provide a sounder basis for Christian rebellions than Christians possessed in the Greco-Roman or Christian worlds?  I do not think so.  In both the classical and the Enlightenment worlds there are overarching human rights, overarching natural laws, and inherent limits to the rights of the state.  The problem is that in ancient and Christian and modern regimes, manifest evils occur sometimes.  In all such cases the evil magistrates are acting against clear principles that properly should prevent his evil.  Nero was understood to be unnatural, a bad Roman, and lawless.  Those violations of natural and divine law, however, did not justify rebellion.  Nor are Christians justified in rebelling against evil Enlightenment governments or what may follow in their wake. 

[i] James T. Murphy.  Saints and Sinners in the Cristero War:  Stories of Martyrdom from Mexico.  San Francisco:  Ignatius Press, 2019.  References to this work will be made parenthetically in the text as ‘Murphy’ with page number.

[ii] Section 2266 of the 1994 Roman Catholic Catechism makes another analogy involving just war theory, namely with capital punishment.  In this case also the state is involved, however, not private individuals or groups well short of the state level. 

[iii] Murphy also strengthens unnecessarily and inappropriately the current tendency towards pacifism in Roman Catholic circles.  By confounding rebellion with just war, Murphy claims that wars such as World War I claimed primarily military casualties (90%), while ‘wars’ such as ‘the conflict in Syria and the U.S. invasion of Iraq’ produced civilian casualties in the 80% range (Murphy, p. 69).  But the ‘conflict in Syria’ was not a war but another rebellion, and one that I would argue could never be justified.  The U.S. invasion of Iraq also, I would argue, fails on traditional just war theory grounds and not because of some new circumstance in the ratio of civilian to military casualties.  The Iraq invasion had no clear causus belli, was not declared by the United States Congress, had vague and unclear goals, and was in the ratio of costs and casualties disproportionately damaging.  By defining rebellions or dubious wars as possibly just wars Murphy, not traditional just war proponents, seems to admit examples that he then forwards as undermining traditional just war arguments.  Just war theory is fine, and it suffices to rule out Murphy’s examples rather than being ruled out by them. 

[iv] Archbishop Orozco was in hiding from the regime.  Although there was some communication possible, no doubt the situation was difficult.  I do not want to emphasize any subjective fault in Blessed Anacleto.  If the pressures and difficulties forced by persecution had not existed, no doubt better outcomes for all might have been possible.

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