CrossCurrents A Catholic Reflects on Faith in Our Times

# 168 Bernard F. Swain, Ph.D. www.CrossCurrents.us

LAW—Or Legalism?

A year ago, while conducting a parish council workshop, I divided people into small sharing groups to talk about future directions for their parish. As I floated around the meeting hall, I noticed one group had somehow raised the topic of immigration.

I was close enough to hear as one parishioner spoke with quiet intense conviction: “I don’t care what their reasons or intentions are. They’re breaking the law! It’s all I need to know.”

That image came back to me this week as I read news of the incident in New Bedford. In case you missed it: Federal officials raided a new Bedford “sweatshop,” detained more than 300 undocumented people as illegal immigrants, and shipped many to a Texas facility pending deportation.

The result: more than 100 young children were left without parental care, including several nursing babies whose mothers were 2,000 miles away.

The great majority of these children are US natives and therefore US citizens. They could be permanently separated from their mothers (if the mothers cannot stay here and the children cannot go with them). Moreover, many of the adults face grinding poverty, political oppression, or physical danger if they are returned to their native country.

As I’ve followed the news, a number of things struck me.

First, a lot of Catholics react to illegal immigrants the way that parish councilor did, so their reaction to the New Bedford incident might also be “They broke the law, that’s all we need to know.” As one local resident wrote in a letter to the Boston Globe last week: “What is it about the word illegal that you don’t understand?”

Second, official Catholic teaching is remarkably clear—and also dramatically different from such reactions. In the Catholic view such immigrants are exercising a basic human right, and actions against them are difficult or impossible to justify.

Third, vast numbers of Catholics remain uninformed of this teaching or the reasons behind it, let alone its practical implications. This is all the more ironic because most of the New Bedford victims were Catholics, and their families gathered in local churches during the aftermath.

All of this begs for more clarity on the obvious question: what is a Catholic to think about the immigration crisis?

The Gospels suggest a useful beginning point. At least seven times the Pharisees attack Jesus for performing healings that “broke the law” of the Sabbath. Yet scripture scholars tell us that nothing in the Old Testament’s Mosaic Law expressly forbids healing the sick on the Sabbath. That prohibition, along with many others, was part of a complex collection of rules and regulations developed by the religious authorities of the day. These added rules were called "the tradition of the elders." These rules reflected, not the divine justice revealed to the Hebrews from the time of Moses, but man-made “laws” proclaimed by those in power.

When Jesus healed in defiance of these “laws,” he made it perfectly clear that his allegiance was to a higher law that expressed divine justice, not human justice. As the 1915 Catholic Encyclopedia observed:

Christ, while observing the Sabbath, set himself in word and act against this absurd rigorism which made man a slave of the day. He reproved the scribes and Pharisees for putting an intolerable burden on men's shoulders (Matthew 23:4), and proclaimed the principle that "the Sabbath was made for man, and not man for the Sabbath" (Mark 2:27).

The Gospel of Luke shows Jesus harshly opposing such “legal rigorism”: "You experts in the law, woe to you, because you load people down with burdens they can hardly carry, and you yourselves will not lift one finger to help them" (Luke 11:46).

And the Gospel of Mark says of Jesus: “And he looked round about on them with anger, being grieved for the hardness of their hearts.” (MK 3:5)

We are even told it was this conflict which led to the plot to kill Jesus! But Jesus stayed firm in his claim that justice must come form the Father: “I can of Myself do nothing. As I hear, I judge; and My judgment is righteous, because I do not seek My own will but the will of the Father who sent Me.” (John 5:30).

This idea linking law to the Father’s will eventually evolved into the Catholic notion of “natural law,” a law built into our nature by the Creator—a law which grounds all earthly laws.

The moral logic behind this notion is clear: doing good means doing God’s will. That means following God’s law, as well as natural law, as well as the human (that is civil) laws based on that natural law.

But here’s the rub: as Jesus showed, sometimes humans create “laws” based, not on natural law, but on greed or power or resentment or prejudice or fear. In such cases, following these laws may not bring God’s justice. In fact, in such cases doing good may require “breaking the law.”

This is hardly a new-fangled or “alien” idea. I remember learning in fifth grade Sunday school that stealing food might be the right thing to do if your family were starving. And Americans saw repeated examples of moral law-breaking in the 1960s, when black Americans took seats at the front of the bus, or ate at a white-only lunch counter, or drank from a white-only water fountain. And Martin Luther King became a national hero by demonstrating how and why “breaking the law” was sometimes the same as doing God’s work. Indeed, the Civil Rights Movement was just that—a movement determined to reject and reverse any “laws” that denied the human rights of black citizens.

But of course human rights do not depend on citizenship—they come from being born a human being. Thomas Jefferson’s language in the Declaration of Independence could not be clearer: it speaks of people being “endowed by their creator” with “inalienable rights.”

This means that immigrants, regardless of their immigration or citizenship status, also have human rights which must be reflected in our civil laws.

What are those rights? The official Catholic view has been expressed by John Paul II, by the Vatican, by Conciliar documents form Vatican II, by the US Bishops, and by many Bishops responsible for America’s border regions. While Church teachings on immigration are comprehensive, they can be condensed into a few practical principles:

1. All human beings have the right to protect their family’s survival and well-being.

2. All people have the right to migrate when local conditions create hardship or danger.

3. Governments have the right to protect their borders and maintain security—but this cannot override the human rights of migrants.

4. Governments must treat all migrants with the dignity and respect all people deserve, regardless of their status or position.

5. Under no circumstances should families be forcibly and permanently separated.

These principles leave no doubt: even when people are “breaking the law”—that is, the rules and regulations set by current immigration policy—they still can claim basic human rights that may justify their actions.

In fact, in such cases the “law” they break is itself put in doubt. As St. Thomas Aquinas wrote, an unjust law is not a law at all—because it lacks the necessary basis in natural law!

All this begs another question: why are vast numbers of Catholics so out of synch with their Church on the immigration issue? Let me suggest three basic reasons:

First: sadly, Catholic Social Doctrine has not shaped the political conscience of most U.S. Catholics.

Second: sadly again, the main influence of Catholic tradition on most Catholics’ social awareness is what one writer called “legal fundamentalism”—the same sort of legalistic attitude that the Gospels castigate the Pharisees for, and which Jesus opposed, but which ironically infected much of American Catholic moral teaching before 1960.

Third: what also shapes the political conscience of Catholics is the conventional wisdom of the dominant secular culture around them—which does not always acknowledge a higher law.

In short, American Catholics behave like many other Americans on immigration because their Church has failed to shape their thinking. For me, this is yet another example of how more and more Catholics reflect less and less of their Catholic identity as they try to cope with the troubling challenges of a difficult age.

© Bernard F. Swain PhD 2007

Send Your Comments and Questions to bfswain@juno.com

Dr. Swain’s opinions do not represent the views of this parish or any other official body.

Bernie Swain has devoted more than 30 years to adult spiritual formation in dioceses in the US, Canada, and France. Since 1991 he has maintained a private practice as trainer, teacher, and consultant to leaders in parishes and other religious organizations. He holds degrees in theology and political science from Holy Cross, Harvard, The University of Paris, and The University of Chicago.

His writings include Liberating Leadership (Harper & Row, 1986) and more than 200 articles in periodicals such as The National Catholic Reporter, Commonweal, The Miami Herald, The Catholic Free Press, The Pilot, Harvard Theological Review, and Liturgy.

A lifelong layperson, he lives in Boston with his wife and three children. Visit his website at:

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