Pope Benedict XVI's Legal Thought: A Dialogue on the Foundation of Law edited by Marta Cartabia and Andreas Simoncini, two Italian legal scholars one of whom is a prominent judge, gathers half a dozen addresses by Pope Benedict XVI — made while he still occupied the papal office — that expound his position on the nature of civil law and its relationship to religion. It includes speeches to the German Bundestag, the English Parliament, the Congress of the United States, and delegates to the United Nations, among others, along with critique and commentary by a number of philosophers and legal scholars. Benedict is not a Thomist in the full and strict sense of that term, but the elusive concept of natural law is the basis of his theories — law accessible to human reason, which therefore allows human beings to transcend mere “positive” law, that is, law that takes its authority from the mere fact that it was promulgated by governmental authority.
Above all Benedict argues against the “scientific” notion of “fact,” which limits the knowledge of truth to what can be proven empirically. Not religious authority but humanity itself requires the possibility of transcendence, of rising above the limits of particular historical situations. The stakes are high in terms of law — Benedict reminds his hearers that many unjust societies, notably his own Germany in the fairly recent past, claimed legitimacy solely on the fact that its laws had been enacted through proper procedures (before the Bundestag he refers to the influential legal theories of Hans Kelsen).
Religion, including specific religious traditions, has an indispensable role to play not because particular religions can claim authority even over those who are not their adherents but because religion is itself a fundamental component of humanity and to ignore or exclude it severely truncates the dialogue. (On this Benedict engages in very fruitful dialogue with the atheist Jürgen Habermas.) Western law is in some ways pre-Christian, its strains deriving from Athens, Jerusalem, and Rome, as well as from the Catholic Middle Ages. Religion can be and has been an enemy of human freedom, Benedict acknowledges. But it has also been one of the strongest protectors of that freedom, with religious freedom recognized by many political thinkers (James Madison) as prior to all others and the basis of all others.
Especially because of the Nazis, contemporary liberalism eschews pure legal positivism and asserts transcendent human rights, as in the United Nations Charter. But Benedict warns that liberalism itself threatens to become a kind of monopoly and that it has difficulty both in identifying the rational basis of such rights and in delineating precisely what they are (the list keeps expanding, based mainly on subjective personal claims).
In the pages of Pope Benedict XIV's Legal Thought, Benedict is speaking primarily as a philosopher, not a theologian, and several commentators note that he does not discuss the question whether a transcendent natural law requires belief in God or in a kind of governing Logos. Several also note the highly abstract nature of Benedict's legal thought, an abstractness that he undoubtedly intended. His purpose is to vindicate the presence of religious belief in the public sphere, and his ideas provide no more than very general guidance on specific questions like abortion and same-sex marriage.
