Guest Post: Critiquing the "Non-Negotiable" Distinction

Another U.S. presidential election is upon us. And what a whopper it has become. I have never seen so much nonsense. For me personally, this one is a no-brainer. I'm voting for Trump. And not as a "lesser" evil; I positively like him and have supported him since the primaries. In my opinion he has the best platform of any presidential candidate I've seen in my adult life. I have multiple Trump signs in my yard. So...this one is easy for me.

But it's not as easy for everyone. Many Catholics I know are having sincere scruples about how to vote this time around. Some sincerely believe they cannot cast a vote for Trump in good conscience. I have been party to many discussions - online and in person - where there is a lot of hand-wringing over what to do.

A friend of mine wrote a guest post on the popular approach of evaluating electoral issues in terms of "negotiables" and "non-negotaibles." This approach has been popularized by popular Catholic outlets like Catholic Answers and other conservative bishops, such as Archbishop Chaput.

There are few things so confusing as a situation where someone may come to the right conclusion for the wrong reasons. In this guest post, our author says that the division of issues into "negotiables" and "non-negotiables" in fact breaks down and provides little help for a voter to really evaluate the issues. True, a voter may use the negotiable/non-negotiable approach and still end up making a "proper vote", but as a result of faulty reasoning. This article will recap the negotiable/non-negotiable distinction, offer a critique of it, and provide an alternate means of weighing candidate positions.

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Colin Donovan has a column in the most recent edition of the Register that succinctly states an argument I am hearing again and again; namely that there is a distinction between political "negotiables" and "non-negotiables", and that Catholics must vote based on the non-negotiables. In the following essay, I will restate his argument succinctly, critique it, and offer an alternative.

Donovan's Argument

Donovan quotes the famous letter of Joseph Ratzinger which states in a footnote: "When a Catholic does not share a candidate's stand in favor of abortion and/or euthanasia, it is considered remote material cooperation, which can be permitted in the presence of proportionate reasons." 

Donovan asks the question what those proportionate reasons are, and answers it in reference to the terms "negotiable" and "non-negotiable", which he claims to find in the writings of Benedict XVI. In Donovan's view, the non-negotiable issues are cut and dry issues involving intrinsic evils, whereas those issues that are negotiable "involve multiple moral principles and complex social circumstances" and as such "are not directly comparable" to the non-negotiables.

The proportionate reasons Ratzinger mentioned are - for Donovan - when a candidate is worse in the "non-negotiables" than his opponent.  However, the "negotiables", such as "health care, the economy and foreign policy", since they "can admit of various possible means to achieve the objective policy, and so people of good will can reach differing conclusions" can never be the basis of proportionate reasons to vote for someone. Thus, one must always give primary consideration to the "non-negotiables", vote based on them, and resist the attempt to try to make the negotiables outweigh the non-negotiables by an appeal to proportionality.

Critiquing the "Non-Negotiable" Principle

There are three errors in this line of reasoning that I will bring forward: (I) Connecting proportionality to non-negotiables, (II) Defining non-negotiables as things that admit to reasonable disagreement vis-a-vis the means employed, and (III) Dividing issues into negotionables and non-negotiables.

I. The argument employed in the article - that if something cannot be the subject of reasonable disagreement, it is in a class different from those things that can be the subject of reasonable disagreement - is false. This is because it very often happens that the ends cannot be subject to reasonable disagreement, whereas the means can. For example, in Pope Benedict's address to participants of the Congress promoted by the European People's Party, which Donovan cites as the major source for the distinction between negotiables and non-negotiables, the pope lists as his third non-negotiable "the protection of the rights of parents to educate their children." But it cannot be denied that this protection may take different forms and involve different cultural institutions. Reasonable people may disagree about how this should be done while agreeing that it must be done. It follows, then, that some non-negotiable ends are only reached by negotiable means. 

Furthermore, we might not know what ends a particular candidate wishes, except by examining particular policies that constitute negotiable means. Therefore sometimes an issue that is negotiable can be the basis for proportionality insofar as behind the negotiable means is a non-negotiable principle that is proportionate. Similar things could be said vis-a-vis protecting religious liberty, or even vis-a-vis reducing abortion itself (although in that case it is clear that Catholics must oppose the legalization of abortion regardless of the effectiveness of law to reduce the numbers of abortions). 

Rather than proportionality being based on the non-negotiable character of something, proportionality is based on the proportional importance of the good at which something aims - and negotiable means can aim at even the highest goods. Here I would like to mention that Pope Benedict himself never connects proportionality to the non-negotiable status of something. That is a connection of two different texts which it is not obvious are meant to be connected.

II. It follows that the distinction Donovan employs between non-negotiables as things that do not admit to reasonable disagreement and negotiables as things that do is insufficient, because the means to accomplish non-negotiable ends often, or even usually, admit to reasonable disagreement. When we acknowledge that non-negotiable ends might not have a clear and decisive path to be reached, we can begin to see that there are many more "non-negotiables" than there seems to be at first blush. Ratzinger's 2002 document, approved by John Paul II, "On Some Questions Regarding the Participation of Catholics in Political Life", appears to list a few surprising non-negotiables. After the common list of protection of human life and of marriage, it lists the right of parents to educate their children, the protection of minors, freedom from modern day slavery (such as prostitution), religious freedom, and, most surprisingly, "the development of an economy that is at the service of the human person and of the common good, with respect for social justice, the principles of human solidarity and subsidiarity, according to which "the rights of all individuals, families, and organizations and their practical implementation must be acknowledged". Who could fail to recognize that in counting the development of an economy in service to the human person as a "non-negotiable", John Paul II has established as a principle and an end something that is often the subject of bitter disagreement?

III. At this point, it should be obvious that the entire distinction between "negotiable" and "non-negotiable" is breaking down. This break down becomes even more apparent when it is recognized that neither Ratzinger, neither as Cardinal nor Pope, appears to have ever talked about "negotiables". The document Colin Donovan references does not talk speak of it, nor does the 2002 document, nor does Benedict XVI mention it in several other writings where be talks about "non-negotiables". While it may be a fair point to assume that if there are "non-negotiables" there are also "negotiables", Donovan puts words in the pope's mouth when he defines them in terms of the ability of people of good will to disagree. In fact, since the pope does not speak of "negotiables", it goes without saying he doesn't define what they are. But he does define what "non-negotiables" are, saying that these are matters of natural law where the dignity of the human person is at stake. Ironically, the Catechism (CCC 2288) lays out a natural law argument that health care is a right and societies have a duty to ensure its availability. This would elevate health care, too, to the level of non-negotiables, for while we can disagree about how best to provide it, we cannot disagree about its necessity or intrinsic value. 

It is evident from all of this that proportionality cannot be defined in terms of "negotiable" and "non-negotiable", and that the Magisterium has never proposed that framework. Not all non-negotiables are necessarily proportionate to each other, and very many things that appear to be negotiable actually aim at something non-negotiable, and proportionality can be established in these things as well.

An Alternative Criterion

If we are not to determine proportionality in terms of negotiables and non-negotiables, then how are we to determine it? 

I propose that we should determine it in terms of what is most closely connected to or affects the common good. There are goods that belongs more closely to the common good, and goods that are more distantly related to the common good. Among those that belong more closely, first place must be given to the religious freedom of Catholics and the rights of the Church, and after that to the peace and harmony of society, and then to life, to family and marriage, to property and the right to seek happiness, to justice for citizens, (especially the vulnerable and marginalized), to respect for women, for children, for sexuality, and so on and so forth. To use a list from the 2002 document: "the promotion and defense of goods such as public order and peace, freedom and equality, respect for human life and for the environment, justice and solidarity."

In determining proportionality, we must ask the question what parts of the common good does a particular candidate opposes, and how much does it hurt the common good? We must do this not only abstractly, but by attempting in prudence to gauge what the benefits and injuries to the common good will be if a particular candidate is elected. Then we must acknowledge that, while not every evil hurts the common good to the same degree, every evil takes from the common good some incommensurate part of it. Abortion does not hurt the common good is exactly the same way as unjust war, nor as a high percentage of elderly without health care, nor as gender ideology, nor as the loss or impairment of religious liberty, and so on.

Also we have to acknowledge that all these things admit to degrees. Someone may wish to reduce the number of abortions, but their efforts may not be likely to make any impact whatsoever, whereas someone else may wish to increase social acceptance of prostitution and have the means to do so. While abortion is objectively worse than prostitution, the actual circumstances may make prostitution a proportionate issue.

Figuring out the proportionality of these issues is not a scientific process, but an exercise of the virtue of prudence that every Catholic called upon to do. It is not something that can be farmed out to the Bishops or to professional theologians, but it is something that Catholics, listening to pastors and experts, have to reach their own conclusions about, in complete conformity to the teachings of the Catholic Church. This is because - while not all issues are proportionate - there is no such thing as a "super issue" that can bring about a justification for the toleration of every other deviation from the common good. It is not enough to say that X is in favor of legal abortion, and Y is in favor of restricting access to abortion (to one degree or another). Politics is the study of contingent things, and who to vote for requires an evaluation of contingent things, starting from the teaching of the Church. It is possible for multiple people to evaluate contingent affairs differently and even to reach different conclusions about who to vote for.

For instance, if one Catholic thinks the result of a particular policy will be promote a very important part of the common good, whereas someone else things the result will be less clearly good, the first will value highly something the second will not. Because it politics is the art of the contingent, two people engaging in politics with the same goals may, as a matter of fact, reach polar opposite positions and vote accordingly. What is important is that something that is directly harmful to the common not be tolerated by one's vote except in the case where there is a proportionate reason for tolerating it, and this proportionate reason has to be a part of the common good that is in some way as important - and which cannot be realized except by voting for that person.

As a practical example: Person A believes that the environment is being hurt by man-made global warming. He is also Pro-Life. In several elections, he has had to chose between an enemy of one good and an enemy of another. He has had to evaluate which is the greater is evil and whether the good of one is proportionate to the evil of the other. He has had to evaluate this not just abstractly, but in terms of the results he thinks the candidates will have on these goods that he cares about. In the end, he has decided in most elections that abortion is most surely the greater evil, and, while not entirely convinced, he nonetheless makes the prudential decision to vote for climate change skeptics. This man is a good voter. He is not a "single issue" voter, but, rather, he is one who has weighed everything with an educated mind and a carefully formed conscience. The fact that some people disagree with him in one way (that abortion poses less of a threat to the common good) or another (that global warming is a threat to the common good) does not change that he has made a good decision in voting, attempting, to the best of his ability, to not tolerate what he perceives to be evil with his vote except for a proportionately good reason.

On Avoiding Servile Labor

The third commandment enjoins us to honor the Lord's Day and keep it holy. This command is part positive, part negative - positively, it commands us to worship God and devote this day to Him in a special way; in a negative sense, it prohibits us from engaging in certain activities that are traditionally referred to as "servile labor." 

However, what exactly constitutes servile labor is usually not spelled out except in the most general terms. To a large extent Christianity has never adopted the Judaic practice of compiling exhaustive, definitive lists of exactly what is and is not prohibited (e.g., exactly how long one can travel in a day, what household items can be used and what can not, how much weight it is acceptable to lift, etc). Christianity, being a faith of the spirit and not of the letter, has tended to prefer very general guidelines, leaving the specifics to the (presumably well-formed) conscience of the individual and the customs of the times.

Just because Christian tradition has tended to leave much of this to the individual's conscience does not mean there are no guidelines at all. Before the modern age, Catholic catechisms featured very helpful, concise lists of activities generally considered inappropriate for Sundays and Holy Days. This sort of instruction has generally disappeared from catechetics and homiletics since the Council.

Protestants, of course, working from an exaggerated dichotomy between the "freedom of the Gospel" and "legalism" have generally eschewed any restrictions on Sunday activity whatsoever. Work of all sorts is usually accepted; Most Protestants I speak with on the subject consider the prohibition of any work whatsoever on Sunday to be a Jewish legalism. Protestants do not even believe going to church on Sunday is an obligation - in fact, I know Protestants who will occasionally stay home on Sunday morning intentionally just to prove that they have no obligation to attend to any communal worship on Sunday. 

Of course, there is no obligation to attend Protestant worship; this applies only to the Catholic Mass, but we are speaking here only of principle. The point is that contemporary Christianity generally has very little sense of anything being unacceptable on Sunday, both among Catholics and Protestants.

Being Catholic, we have nothing to say about what Protestants choose to observe on Sunday; their unfortunate ubiquitous dualism between "works" and "freedom" is too radical for most to have a balanced approach to the question. But from a Catholic perspective, it would be helpful to return to the traditional concept of "servile labor." 

Servile labor traditionally means any sort of work that is heavy manual labor, or such work as in a given society people commonly associate with strenuous effort and do not engage in when they have the freedom to avoid it; it is work you do "for a living", versus something you might engage in for recreation, education, or the worship of God. I want to share - in an informal way - some of my attitudes towards this aspect of Sunday and some rules of thumb I follow in assessing what is and is not "servile labor." This is all just my own approach; I don't claim it's authoritative in any way.

I personally apply the label "servile labor" to any sort of job or chore that is strenuous. For example, I would personally not work on a home improvement project on Sunday. Tiling the bathroom, shingling a roof, pruning trees - in my household, these sorts of projects are off limits on Sundays. Even if they are not "for a living", they are just too strenuous and physical for me to feel comfortable doing them on the Lord's Day. It seems incompatible with the concept of rest.

In the modern age, however, it is not as helpful to focus on the "manual" aspect of servile labor, because a great many people no longer engage in any sort of strenuous physical work. Rather, I find it more helpful to associate servile labor with that which you do "for a living" - i.e., your job. Thus whereas in the old days farmers were encouraged to abstain from farm work on Sundays, nowadays it is common for Catholic business people to abstain from phone conversations relating to business or looking at work emails on Sunday, even though these actions are not strenuous physically. Even so, I think this is a good modern adaptation of the principle. I avoid anything work related on Sunday.

What about strenuous physical sports? In this case, I think it is alright, because, say, getting all worked up and sweaty playing basketball is still clearly recreational - it is merely strenuous recreation, and I think that distinction is important. Now some will immediately say, "But what if it is recreational for me to tile my bathroom or hang siding on my house? Should that not be allowed by your criteria?" To that I say, "Friend, if you can truly tell me that the tiling of your bathroom or the siding of your house is truly and solely a recreational pursuit, then be my guest, I suppose." But I don't know anyone who undertakes a home improvement project just for fun and without any utilitarian reason.

In general, I avoid anything that seems like a "chore." I have mentioned home improvement sorts of projects; I also avoid more routine chores. Doing laundry. Chopping firewood. Mowing the lawn. Vacuuming the house. Washing the windows. Weeding the garden. Going grocery shopping. This also includes homework; my kids are forbidden from doing homework on Sundays, and I will not grade student homework on Sundays. Anything that is a "chore" we avoid. 

However, we do make one exception - chores that have to do with simply maintaining basic sanitation and cleanliness are allowed. If the trash is overflowing, I will still take it out on Sunday. If the sink is full of dirty dishes, of course I wash them. I don't vacuum the house in general, but if the kids were eating popcorn and make a mess, of course I vacuum it up. So essentially anything that is like, maintaining basic sanitation and cleanliness we will do.

I will do other sorts of "work" that is recreational. I obviously blog on Sunday. I will spend time writing or working on books. I will exercise or do things for personal fulfillment. 

I often get the question on whether or not it is alright to go out to eat on a Sunday. The objection is that when we go out to eat, we are forcing other people to work on Sunday (i.e., the waitstaff, cooks, etc. who staff the restaurant). I suppose this question comes up because it is so common for people to go out for breakfast after Mass that it is a very common quandary.

I personally have never objected to going out to eat on Sundays and Holy Days. Feasting is a way the Holy Day is celebrated, and often times Sunday is the only everyone in the family is home from work and able to go out together. It is celebratory. Now, it could always be argued that it causes the restaurant staff to work. Perhaps. I assume they would be working that day whether or not I came in to the restaurant. I also assume - generally - that people who are working on Sunday morning are not Catholics anyway, so I don't scrupulize too much over whether they are doing unnecessary work on Sunday. At any rate, the concern has never stopped me from enjoying breakfast with my family on a Sunday. 

I do, however, try to support businesses that close on Sunday. 

One final thing: even though the disappearance of a real catechesis about the Lord's Day is a post-Conciliar phenomenon (perhaps with the exception of St. John Paul II's Dies Domini), do not be tempted to think that flaunting the prohibitions against work on the Lord's Day is something modern. As far back in history as one can find homilies, one can find examples of preaching against servile labor on Sundays. Even in the "golden age" of the 13th century, surviving homiletics reveal that working on Sundays and Holy Days was endemic; several chapters in the Fioretti of St. Francis are devoted to describing the misfortunes of peasants who worked on Holy Days. It is certainly not a post-Vatican II novelty. So please, no comments about how in the "old days" no Catholic would have ever dared work on Sunday.

We also should remember, in the Middle Ages there were many more days that were considered Holy Days where work was prohibited - so many so that many common folk complained about not having enough time to finish their work. I cannot cite the source, but I remember reading in one scholarly work on medieval calendars that in some places as many as 100 days out of the year were nominally supposed to be work-free. This was, of course, excessive, and by the 13th century many of these days were no longer being observed. This cluster happened as a result of the accumulation of universal and regional festal days over the centuries; it was not until after Lateran IV and the reforms of the late Middle Ages that the status of many of these feasts changed to make their observance more manageable.

Anyhow, such are my hodge-podge of random thoughts on the duty to abstain from servile labor on Sundays. Any comments or thoughts are welcome. Pax.