Since my previous post seems to have ignited the passions of at least one pseudonymous bondsman (or woman) I thought this piece by Fish in the NYTimes was also pertinent. I know that Fish himself stirs up great passions, at least among academics, and often not of the most affectionate sort, but often his says very sound and thoughtful things. Today he compares the issues underlying the Donatist controversy with the situation that Burris finds himself in, or rather the situation that the Senate finds itself in with regards to Burris.
The gist is that the argument surrounding Burris, at least so Reid insists, is not his suitability, rather it is that his appointment is “tainted” due to Blagojevich. Those who know Augustine could predict this from the column’s title.
This last question is not new. It was debated in the 4th and 5th centuries in the context of what is known as the Donatist controversy. This debate was about the status of churchmen who had cooperated with the emperor Diocletian during the period when he was actively persecuting Christians. The Donatists argued that those who had betrayed their faith under pressure and then returned to the fold when the persecutions were over had lost the authority to perform their priestly offices, including the offices of administering the sacraments and making ecclesiastical appointments. In their view, priestly authority was a function of personal virtue, and when a new bishop was consecrated by someone they considered tainted, they rejected him and consecrated another.
While I would quible with some of what Fish says or how he says it I agree, at least in sacramental terms, with Augustine’s determination.
Whatever infirmities a man may have (and as fallen creatures, Augustine observes, we all have them) are submerged in the office he holds. It is the office that speaks, appoints and consecrates. Its legitimacy does not vary with personal qualities of the imperfect human being who is the temporary custodian of a power that at once exceeds and transforms him.
As I said, I agree with this view as regards the Church, but I am not sure I would extend the analogy completely into the secular realm. The character of the individual holding an office does make a difference. It does not make a difference as to whether or not a law they pass is a law (this is Fish’s point, citing English law relating to Edward VI as well), their work they have wrought remains wrought regardless of their character, although it may well be colored by their character. And that is why the office remains valid even if the office holder is an (in)valid, but in choosing those for the office we do well to consider their character.
But back to Burris (about whom, in spite of these two posts, I have little knowledge or concern) it is not so much his character or personal validity that is in doubt rather it is the one who appoints him that is dubious. Here Fish is undoubtedly right that even if the one making the appointment is a jerk the appointment remains valid nonetheless (so long as it has been done following proper legal process, which the courts in IL have just determined to be so, “Burris’s Appointment Backed by Illinois Court“).
It is perhaps a little sad, disapointing even, to have to be pragmatic and affirm Fish’s conclusion:
The (perhaps paradoxical) truth is that while governing has or should have a moral purpose — to safeguard and advance the health and prosperity of the polity — it is not a moral practice. That is, one engages in it not by applying moral principles but by applying legal principles.
We need a greater moral purpose in our leaders and in governing, I think. Moral principles ought still to have a role (the role) governing legal principles, but that has sadly been lost along the way. “You have heard it said, ‘you shall not murder….'”