The week after the Islamic murder of twelve Charlie Hebdo employees and several French police officers, the popular American discourse as to what qualifies as “relevant” to the event is becoming increasingly narrow. Notwithstanding the popular insistence upon a singular moral in the sad event, indeed it should be seen as a manifold, or at least a two-fold, message: a) murderers must be brought to swift and unrelenting justice, certainly, but also b) there is an important distinction between legality and morality that must not be overlooked.
The West continues to ignore the latter lesson. The public insistence upon only the first moral stems from a once-dormant, occidental sickness: a Western inability or refusal to recognize where the positive law and the natural law overlap. And where they do not. The popular resistance to remembering this long-lost distinction turns out to be something of a bette noir in American life that continues to kill our culture softly.
And as it kills our culture, it tends to engender undue controversy for some of our subtlest and most honest observers. This category of folks includes Catholic League president Bill Donohue, who drew out this unpopular distinction at his own inconvenience, and even to his own maligning, late last week.
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Donohue felt the sting of popular opprobrium most sharply about his statement’s suggestion that “it is too bad that [Hebdo‘s editor, Stephan Charbonier] didn’t understand the role he played in his own tragic death.” Within 36 hours of both the Islamic mass-murder and the ensuing statement Donohue released, he defended his invocation for more publishers’ self-restraint on neoconservative Hugh Hewitt’s syndicated call-in radio program and on Fox News’ The Kelly Files with Megyn Kelly. Things there, especially on Hewitt’s program, went awry.
For the record, Donohue from the very outset stipulated his position that “killing in response to insult, no matter how gross, must be unequivocally condemned.” Donohue’s distinction did not appear subsequent to the statement, as a sort of cowardly “walk back,” but rather simultaneous to it. And in a follow-up piece the next day, he was even more clear: “Nothing justifies the killing of these people, but this is not the whole of this issue.”
Positive Law and Natural Law: Legality and Morality
Seeing the “whole” of the Charlie Hebdo issue requires Donohue’s message. Commenting on the ostensible goals of James Madison, the Father of our Constitution, poet Robert Frost once wrote: “Now I know—I think I know—what Madison’s dream was. It was just a dream of a new land to fulfill with people in self-control. That is all through his thinking … to fulfill this land—a new land—with people in self-control.”
I believe that Frost’s call for self-restraint—and Madison’s—is no different from Donohue’s. Thus, the plain difference between legality and morality must be arranged in its proper order. And Donohue did a phenomenal job in marking this emphasis during his heated interview with Hewitt.
Natural law is (and should be, if that matters) much more expansive than the positive, or human-made legislative, law. Thomas Aquinas wrote that “human laws do not by strict command prohibit every vicious action, just as they do not command every virtuous action.”
This means that we enjoy many more legal rights than moral rights—which itself means that true liberty requires non-legislated self-restraint. Donohue got this 100 percent correct … by saying repeatedly and unequivocally that he seeks “self-censorship” and not legislative censorship. (Through all 23 minutes, against Donohue’s straightforward protests, Hewitt consistently recurred to a feigned presumption that Donahue invoked legislative censorship.)
In brief, liberty—as understood by the scholastic tradition—describes a moral freedom oriented to the good; license or false freedom is an abuse of true liberty because it employs freedom for its own sake. And license’s false teleology renders it both amoral and indefensible, even while legal in certain cases. In the case of rightfully legal, yet licentious exercises of free speech—like Charlie Hebdo sodomy cartoons, according to Donohue—moral defensibility collapses, even as legal defensibility stands.
What does this mean in the case of Donohue’s statements?
Hewitt versus Donohue
Now, Fox News’ Megyn Kelly went after Donohue a little, but it was during the Hewitt interview that things grew very ugly very fast. Plainly, Hewitt chose to employ fishwives’ shame tactics and to the presumptively infallible popular configuration of the event, instead of an honest or at least embattling line of inquiry.
Whereas Donohue came prepared to defend his statement in a logical and genteel (at least initially) manner, Hewitt couldn’t suffer to have Donohue’s reasoning pass as anything but shameworthy. In other words, Hewitt wanted to pin a line of ipse dixit, “we already decided you are bad” shame on Donohue. Hewitt couldn’t “risk” the tempestuous sea of dialectics, and he seemed genuinely surprised that Donohue wanted to go there.
If any doubt about this was left to the listener, Hewitt sealed it by repeating four times throughout the 23-minute interview that “this is an interview, not a debate.” While implying that all reason is reserved for debates and not interviews, Hewitt’s tactic was clearly intended to deny Donohue an opportunity to engage in a reasoned dialogue over the moral limitations of freedom. By refusing to engage in a serious discussion, Hewitt conceded the weakness of his own feeble position.
Hewitt attacked Donohue with a rigorless verve that fell short of any vindication. In a genuinely artless blunder, Hewitt actually called it a “silly point” when Donohue articulated skillfully (under heavy fire) that “people have a legal right to insult … Islam or any other religion, but they have no moral right to do so … do you get that?!” Hewitt’s answer, Mr. Donohue, is that he does not get it.
One would summarize by saying that Hewitt screamed down Donohue during their unfruitful contratemps, and seemed genuinely “impervious to reason,” as Donohue remarked at one point. Beleaguered and clearly intellectually overmatched, Hewitt spent more than eight minutes of the interview “chewing clock” by insisting on Donohue’s disclosure of private Magisterial support which Donohue had already clearly stated he could not betray.
In short, for Donohue’s simple, straightforward insistence upon what I’ve called the second lesson of the Hebdo tragedy—the morality/legality distinction—Hewitt slurred him as a “shame,” a “scandal on the Church,” an “embarrassment,” and repeatedly mischaracterized the very basic premises in Donohue’s message.
Full disclosure: as of minute one of the interview, I shared in Hewitt’s aversion to Donohue’s two statements. That is, I thought that Donohue was seeking to “blame the victims” as well. But Donohue acquitted himself so excellently throughout the affair that I now defend 90 percent of his message: viz. Charlie Hebdo (and its authors) is not a “martyr,” because the magazine bore the legal but not the moral right to publish the sodomy cartoon which led to the odious Islamic violence. The cartoonized depiction of fictional sodomy is not a moral right of man. Conversely, to count among the martyrs—to earn our genuine praise—as Donohue insinuated, one’s actions must bear moral (often times, not even legal) right.
The American public—and evidently Hugh Hewitt—have got this age-old binary reversed, on their configuration of things.
Ensuing coverage of Donohue versus Hewitt was no fairer than the interview itself. Even trusty old National Review Online came to the peremptory conclusion that Hewitt “excoriated” Donohue—one no reasonable person who listened to the interview could draw.
Now, I maintain that Donohue was erroneous in averring that Charbonier contributed to his death morally. The proposition of Charbonier’s “role” or contribution cannot be discussed any more morally than it can be legally—even if the sodomy cartoon bore no moral right. The decision by these “crazed Muslims,” to borrow Donohue’s own terminology, was realized by their act alone. Nothing done by Charlie Hebdo can be said to have prompted the event, morally: each moral agent bears his own free will and constitutes what our criminal law deems a “superceding cause,” even when aggressors have been goaded or prompted to their violence.
Only in some third sense—that of rote probabilism—might something like contribution have been ascribed to Charlie Hebdo: e.g. a woman who walks nude through a prison yard takes the probability of her own consequent harm far too lightly, even though she nevertheless does not deserve ensuing harm, morally or legally. But the fact remains that speaking out against Charlie Hebdo‘s purely pornographic cartoon does not equate to any defense of Muhammad, loathsome jihad, the Qu’ran, or Islam itself.)
Islam and 2015
Therefore, the remaining aspect of all this which requires mention is: who will be honest about the Islam issue? (Honest in the difficult, meaningful way.) One remains unconvinced that outfits like Hewitt or Fox News—throughout all their abuse of Donohue, as well as their full-hearted self-congratulations for their own stance, last week—will deal with Islam in any more subtle or sophisticated a way than Donohue. In fact, based upon recent history, one intuits that Donohue may likely be the party more prepared to talk in civil, non-scatalogical, truly controversial terms (by stating unwelcome truths) about the explosive relationship between the Islamic faith and everybody else in the world.
Rather than debating the wrong approach to Islam—pornographic satire—I would have preferred to see both Donohue and Hewitt have a meaningful debate about Islam. Donohue would be further vindicated in such a debate (after declining to validate meaningless smut by Charlie Hebdo) by satisfying the expectation that his treatment of Islam would be more daring than Hewitt’s or Fox News’. Civil, not pornographic, daring is what’s needed, and it’s needed fast.
(Photo credit: AP)