Some Fragments toward an Integralist Penal Law

By P.J. Smith


A preliminary observation: when someone demands a complete policy proposal, what are they seeking to enthrone? What are they seeking to minorize? Here I am thinking of Michel Foucault’s January 7, 1976 lecture at the Collège de France (collected in the volume “Society Must Be Defended”). It seems patent to me that the declaration that such and such is a science, made always with the intent to disqualify other knowledge, is the same thing as demanding that integralists present complete policy proposals, made with the same intent. That is, the guardians of liberalism seek to disqualify integralist thought by asserting that only ideologies completely concretized with laws and regulations and white papers are serious ideologies. The demand is obviously made in an attempt to tap into the power-structures of the existing regime, which necessarily has laws and regulations and white papers.

One of course can approach the question of laws and regulations in purely technical terms, that is to say, as an exercise in drafting statutes. A person who, being validly baptized, knowingly or intentionally holds a doctrine condemned by the Supreme Pontiff or an ecumenical council commits heresy, a felony. One can even go so far as to draft statutes establishing proof. A certified copy of a judgment from an ecclesiastical tribunal finding that the defendant has committed the canonical delict of heresy shall be sufficient proof that the defendant has committed heresy, a felony. In and of itself, this is not very difficult work. If the demand for an integralist penal law is a demand that integralists engage in the purely technical task of writing statutes that would be adopted in a hypothetical integralist state, this is no demand at all.

Yet no one really conceives of the demand as a demand for technical examples of integralist penal law. Such a demand would be of interest only to lawyers and the answers intelligible for the most part only to lawyers. By and large the individuals demanding such work are not lawyers. The demand is made on a much lower level: who will be punished and for what? Here, we find a new attempt to disqualify integralist thought. However, the question of who will be punished and for what is just about the last question to be asked. Only after the hard work—the very hard work, in fact—has taken place with respect to theoretical questions can we even begin to approach the concrete question.


Recall Professor Pink’s thesis: Dignitatis humanae represents a change in the Church’s policy with respect to coercion, not a change in the Church’s doctrine. Consider in this regard canon 1311 of the 1983 Code, declared by John Paul II to be consistent from top to bottom with the ecclesiology of the Second Vatican Council. For now, if Professor Pink is correct, the Church does not require the assistance of the state in vindicating its “innate and proper right” to coerce the baptized with penal sanctions. This could change, but the announcement of the change would have to come from the Church.

This is perhaps the central question for an integralist penal law. The policy of the Church is not to seek assistance for its coercive activities from the state. Under these circumstances, is it necessary (or appropriate) for an integralist regime to adopt penal law addressing heresy? The integralist state would take on the role of Lisa Simpson, once described by Ned Flanders as “Springfield’s answer to a question nobody asked,” if it adopted penal measures with respect to heresy without a request from the Church. This is to say that the state ought not to assume the role of an officious interloper, acting on behalf of the Church when the Church has not asked for assistance.

We must also acknowledge the limits of the Church’s coercive power: it extends only to the validly baptized. Non-Christians are simply outside the limits of the Church’s power, not least since Thomas’s position on forced baptism prevailed over Scotus’s. To be sure, if the rites of non-Christians somehow imperiled the unity and order of the state—that is to say, the peace of the state—the state would not be powerless to act. And if the rites of non-Christians imperiled the Church, the state, presumably, would not be powerless to act. However, this would not be necessarily a concrete expression of integralist penal law. And the state’s action would be aimed only at restoring the peace of the state, not coercing belief. All of this is entirely consistent with Dignitatis humanae and the teaching of the Second Vatican Council.

Another important question on this point: who has the authority to request the state’s assistance on behalf of the Church? It is understood implicitly that the pope, acting on his own, or an ecumenical council cum Petro et sub Petro, could request the assistance of the state. But could a diocesan bishop? Could intermediate bodies, such as an episcopal conference, request the assistance of the state? This is not merely a question to be answered in the context of penal law, but a question to be answered in the context of all law.

One more question: who has the authority to answer the Church? That is to say, if the Church changes its policy tomorrow and requests the assistance of the state, who shall attend? Much turns on this question, as well.


By the same token, what are the state’s rights? Remember that Frederick II, the great Hohenstaufen emperor, adopted stringent legislation against heresy, both in Sicily and the Empire. Remember that Justinian, the great lawgiver, began his Codex with no less stringent laws against heresy. Was this misguided? An overreach by authoritarians—indeed, proto-totalitarians? Perhaps Cardinal Danielou’s assertion that religion is part of the temporal common good provides the key. In Prayer as a Political Problem, he wrote, “Religion is not concerned solely with the future life; it is a constituent element of this life. Because the religious dimension is an essential part of human nature, civil society should recognize it as a constituent element of the common good for which it is itself responsible.” Nevertheless, in acknowledging that the state has the right—because it has the duty to defend the true religion, which constitutes part of the temporal common good—to suppress heresy, we must still consider the nature of that right and its extent. We return also to our fundamental question, in a different way: does the Church’s change in its policy mean that the state’s right is suspended or even abrogated?

Moreover, is there not more to integralism than merely addressing heresy? As noted above, the debate is often joined on this point for purely rhetorical reasons: look at the wicked integralists, who might be stern, even stringent, with protestants. Yet there are areas entirely separate from the content of one’s creed where Catholic teaching could be implemented by the state. Consider the social doctrine of the popes. Consider, for a more recent example, Pope Francis’s ecological teaching. Considering the teaching of Leo XIII and Pius XII, among others, it is clear that the Church does not claim the right to direct minutely the activities of the state on matters such as industrial relations or environmental protection. The state has latitude here to tailor its laws to the common good. Yet would anyone deny that a regime that attempted to implement the Church’s teachings on industrial relations or the environment was profoundly integralist—whether or not it adopted a penal law touching upon heresy?


In almost every interaction with the law, there is coercion. Worse than coercion, there is persuasion. We see this most obviously in the criminal law: if you commit certain acts, you will be punished with fines or imprisonment (in some cases, even death). We see this also in the juvenile law: if a parent does or fails to do certain acts, he or she will be compelled under a court order to cooperate with the government in receiving services. Violation of the court order could result in jail. If the parent fails to comply long enough, his or her relationship with the child will be terminated. But there are all sorts of other coercions: in zoning law, in environmental regulations, in professional licensing.

More insidious than the coercion backed up with prison or fines or contempt powers (which is to say, prison or fines) is the persuasion that is implicit in tax laws. It is a fact—a fact of long standing, a consequence of central banking—that the government does not actually need income tax for revenue. The Internal Revenue Code in the United States therefore becomes an enormous mechanism of persuasion. If you do certain things, you will receive financial benefits; if you do other things, you will receive financial penalties. Over time, as the deductions and credits add up, you may find yourself adopting views without knowing it.

But we must stop here to ask a question. Why are the coercion and persuasion under liberalism privileged? Is there a stronger moral basis for the rule that you must pay a penalty if you take money out of your 401(k) before age 59 1/2 than a hypothetical rule that you must pay a penalty if you defame the Blessed Virgin Mary? Is there a stronger moral basis for a prohibition of possession of methamphetamine than a hypothetical prohibition of possession of Calvin’s Institutes? You may say in the latter case that methamphetamine destroys lives and communities, which it surely does, but even that betrays a privilege for laws addressing material harms as opposed to laws addressing spiritual harms. There must be some reason for the privilege, then. Could it be that what is is considered immutable (and therefore good)? Could it be that we can see in a concrete (i.e., biological) way material harms but usually cannot see spiritual harms? There are necessarily metaphysical presuppositions to the privilege assiduously afforded to coercion under liberalism. There are probably consequences to such privilege. Here we can turn to the vista of political theology.


“Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.” Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting). Law is framed as a measure of human acts and its purpose is to lead men to virtue, albeit gradually (ST IaIIae q.96 a.2 co. & ad 2). The resistance to an integralist penal law seems fundamentally to be a denial of these principles; that is, those who resist—or even reject—the concept of an integralist penal law hold, ultimately, that the government ought not to teach by means of the penal law, the government ought not to adopt measures intended to lead men to virtue by punishing the more flagrant vices (cf. ST IaIIae q.96 a.2 co.). Or, once again, we return to the metaphysical presuppositions behind such positions: the bizarre privilege for laws addressing material harms and the steadfast denial of spiritual harms as subjects for redress by the state. Whatever the motivation, the resistance to an integralist penal law represents fundamentally an impoverished notion of government, which reduces the state to little more than a traffic cop or hall monitor.

There are difficulties—serious difficulties—that must be surmounted before engaging in the technical task of writing statutes. For the integralist, the most serious task is addressing the fact that the Church, for the moment, does not seek the assistance of the state for its coercive activities, claimed as its “innate and proper right” even after the Second Vatican Council. However, for the integralist, there is no question that the impoverished liberal sense of government-as-traffic-cop is inadmissible. Indeed, the reason why integralism is being debated so hotly is because the traffic cop has failed in his duties. At the risk of carrying the analogy too far (or the more serious risk of lapsing into preciosity), the only question is, really, how best to sweep up the mess he has left, how best to tend to the wounds caused by the accidents he has caused, and how best to lead the drivers back to sane driving.