Body and soul
Catholicism built the labor movement. It must do so again
There is little disputing that religion is at present one of the most discussed and neuralgic of issues. Books such as Christopher Hitchensâ€™s God Is Not Great: How Religion Poisons Everything, Richard Dawkins's The God Delusion, and Sam Harris's Letter to a Christian Nation are reminders of just how divisive the subject can be in our culture. Yet, like the stray dog that followed you home as a kid, religion keeps showing up, no matter how many corners you turn or alleys you cut through. And that includes in the workplace.For many of us, I suspect, the very phrase "œreligion in the workplace" prompts a certain unease and the vague feeling that, somehow, religion and work don"™t go together. Such sentiments might find a degree of confirmation in the fact that for lawyers, the phrase likely brings to mind the knotty sorts of problems associated with accommodation of religious practices or beliefs under Title VII of the 1964 Civil Rights Act or with the Constitution.
There is good reason for this. The past few decades have seen a substantial increase in the number of religious discrimination complaints filed against employers, involving everything from scheduling around an employee"™s religious needs to the right of workers to wear religiously required garb on the job. Meanwhile, issues where religion and the Constitution meet (free exercise, separation of church and state) remain a running sore on the body politic, one unlikely to heal anytime soon. Yet"”and few Americans realize this"”our labor and employment discrimination law has a strongly religious foundation. Without that foundation, we would have little of the structure with which we are familiar.
Writing in the early 1930s, some years before the National Labor Relations Act (NLRA) of 1935 guaranteed American workers the right to organize and bargain collectively, the labor economist and historian David J. Saposs declared that "œthe significant and predominant role of the Catholic Church in shaping the thought and aspirations of labor is a neglected chapter in the history of the American labor movement. Its influence explains, in part at least, why the labor movement in the United States differs from others, and why it has become more and more reactionary."
In the mid-1990s, the Swedish comparative law scholar Reinhold Fahlbeck published a provocative essay in which he reflected on "œthe un-American character of American labor law." This law, argued Fahlbeck, with its emphasis on collective action and on the formation of associations, stands in stark contrast to the attitudes of the "œarchetypal American." >From the viewpoint of the average American citizen, Fahlbeck observed, "œthose people who want and need concerted action and unions are not quite reliable. They are not like Americans at large."
Fahlbeck was onto something, as was Saposs six decades earlier. Our labor law and the institutions that support it rest on understandings that lie outside the American mainstream. Exact numbers are difficult to determine, but historically the rate of union membership among Catholics (and Jews) has been vastly out of proportion to their representation in the American population. This imbalance has been even more pronounced within union leadership. For much of its history in the United States, the labor movement has been largely a Catholic phenomenon.
One explanation for these facts may be that as primarily poor and marginalized immigrant groups, Catholics, like Jews, were disposed to organize themselves to improve their economic standing. Indeed, until 1965, when the trends reversed themselves, Catholics had lower incomes, held lower-status jobs, and were less likely to receive a college education than their Protestant fellow citizens.
At the same time, Catholics hardly have been the only group with something to gain from unionization, and they"™ve always been a relatively small minority of the American populace"”15 percent in 1935, and still less than 25 percent today. So, if economic interest alone does not explain the traditionally Catholic makeup of the American labor movement, what does? Three factors, I believe, played a critical role.
First, in their traditional self-understanding, Catholics, like Jews, see themselves as inextricably part of a community, one that transcends time to unite the living and the dead"”hence, the celebration of Masses for the dead and the Kaddish of Mourning. The 18th-century British political thinker Edmund Burke captured this understanding in secular terms with his observation that society "œbecomes a partnership not only between those who are living, but between those who are living, those who are dead, and those who are yet to be born." Thomas Paine, in criticizing Burke, stated the more typical American view. "œThose who have quitted the world and those who are not yet arrived at it," Paine observed, "œare as remote from each other as the utmost stretch of moral imagination can conceive. What possible obligation, then, can exist between them?" As if in counterpoint, the Catechism of the Roman Catholic Church instructs that the Church is a "œcommunion of saints," both the living and the dead, bound in ties of intercessory prayer so "œthat the union between them . . . is in no way interrupted."
Catholics, particularly those raised in the pre"“Vatican II world, never would imagine themselves as being entirely alone. Accompanied by one"™s guardian angel, united by continuous prayer with the faithful dead and special intercessors (patron saints), and bound to Catholics around the world by communal and regular observance of rituals such as Friday abstinence from meat, the Lenten and Advent fasts, recitation of the rosary, regular Mass attendance"”all of these practices embedded in a well-demarcated liturgical year with its own rhythms, special observances, feasts, and symbolic vestment colors"”Catholics typically have taken an entire world with them wherever they go. The Catholic boardinghouse might be crowded and lacking a certain privacy, but it is never lonely. The single, sole self of the American Protestant world and the communal self of the Catholic world gaze at each other in mutual incomprehension. Belief in direct and personal revelation permits Protestants to judge matters of faith and morals for themselves; Catholics rely on tradition. The former meet God"”or any other sort of authority"”face-to-face, in a direct encounter, the latter, only through the mediation of the Church. Protestants walk alone with God, Catholics, in processions.
Substantial differences between Catholics and Jews notwithstanding, I would suggest that similar attitudes toward community, ritual, and tradition result in Catholics and Jews being closer to each other in their thinking about these matters than are Protestants and Jews, and for that matter, Catholics and Protestants.
The emphasis in catholic theology on the human body represents the second factor that helps to account for the traditionally Catholic character of the American labor movement. In Catholic thought, the body and the soul"”the latter being, in classical terms, the "œfirst act" of the body, or what we might call today our identity"”are the co-principals in the constitution of the human person. Body and soul"”body and our conscious and unconscious identity"”stand in a mutually conditioning, mutually dependent relationship. There is a real earthiness in Catholic thought, one that never overlooks the fact that humans are embodied consciousness.
The corporeality of Catholic thought accounts in part for the emphasis on ritual, on physical disciplines like fast and abstinence, and an overall concern with habit. By habit, I mean an acquired and steady disposition, a manner of being"”what Tocqueville implied in his lovely and powerful phrase, "œhabits of the heart." Catholicism understands humans as self-constituting beings: Every act in which we engage constitutes us, makes us to be in a certain way and, when perpetually done, shapes our character, orients and fixes our understanding, and determines our identity. We are what we do. As Aristotle described it, our habits "œcut a groove" in us, a notion brain researchers since have confirmed. Catholicism historically has paid a lot of attention to the day-to-day details of life because this is where we live and make of ourselves what we are, and because our habitual actions determine the range of other actions that we likely will undertake.
The third factor unites the first two: the presence of a Catholic social thought tradition, a body of teachings that has its roots in the early 19th century and which began as a reaction to the extreme and doctrinaire individualism of the Enlightenment. From the start, Catholic social thought has concentrated on two areas, work and its impact on the humans who perform it, and the creation and maintenance of what we today call "œmediating institutions," those bodies"”unions, sodalities, fraternal and caritative groups, service and political organizations, families, religious congregations and societies, etc."”that stand between the individual and the large institutions of the state or the market.
The concern of Catholic social thought with work grew out of myriad efforts, by generations of activists and theorists, lay and clerical alike, to address what Napoleon Bonaparte early on referred to as the "œsocial question." In the wake of the French Revolution, the ancient feudal arrangements that once had given society its terms and relations were swept away and ruthlessly suppressed. The Loi de Chapelier, for example, enacted by the French National Assembly in 1791 and not repealed until late in the 19th century, outlawed guilds and all other forms of workers"™ associations because they offended the notion of free and individual agreement between worker and master.
As this revolutionary order spread across Europe, individuals found themselves emancipated from the bonds that once determined their place in life. At the same time, the weak found themselves placed outside the web of duties that once sheltered them through the obligations they imposed on the strong. Freed from the land and other customary strictures and obligations, but loosed into a world increasingly governed by the rules of supply and demand and the terms of individual agreement, a new mass of people, without property, place, legal status, or protection, arose"”the working class. Finding ways to give these individuals legal recognition, some measure of security, and a voice in society formed the core of the social question.
The first person to use the word proletariat to describe this body of the dispossessed and marginalized was not Karl Marx but rather Franz von Baader, one of the most important social philosophers of the German Romantic period and one of the earliest Catholic social theorists, who employed the term at least a decade before Marx adopted it. The word originally referred to the lowest class in the Roman state and its members"™ only wealth (proles"”offspring).
In Catholic social thinking, the term proletariat always has signified far more than a condition of material poverty. It refers to a condition of inner impoverishment, as well, that can be brought about by social, political, or economic orders that instrumentalize human work, teaching individuals to understand their worth, purposes, and activities simply in instrumental terms. In his 1981 social encyclical, Laborem exercens ("œOn Human Work"), John Paul II reviewed the development of the Catholic social tradition and emphasized that "œthe proper subject of work [is] man." Insisting on the priority of labor over capital and of persons over things, he condemned every form of "œwhat we can call the error of economism, that of considering human labor solely according to its economic purpose." This encyclical, incidentally, was written to mark the 90th anniversary of the first papal social encyclical, Leo XIII"™s Rerum novarum ("œOn the New Things"), which also concentrated on work and championed both the right of employees to organize and the social necessity of unions and other forms of worker associations.
In recognizing that "œwork is for man, and not man for work," John Paul II reflected the Church"™s long-standing concern with habit: In performing work, we literally are performing ourselves. Work "œbears a particular mark of man and of humanity, the mark of a person operating within a community," he wrote in Laborem exercens. As the Rabbis framed it, through work, humans are given the unique privilege of participating in the completion of creation, an insight the Catholic social tradition has adopted. Deliberating, judging, and choosing constitute the most human of acts. Consequently, the social thought tradition long has supported the creation of opportunities for employees at all levels to participate in decision-making. For example, as early as the 1840s, German Catholic social theorists and activists supported the creation of joint employee/employer works councils (BetriebsrÃ¤te), now a core feature of the German and European employment law regimes. From the 1860s onward, the Catholic social tradition has given unbroken support for the formation of unions and collective bargaining.
Beyond the workplace too, Catholic social thought throughout its development has emphasized the creation and maintenance of what Edmund Burke would have called "œlittle platoons""”associations of all sorts, religious and otherwise, that ground individuals in constructive action and might appropriately be called "œstructures of solidarity."
Nearly 50 years ago, the labor historian Marc Karson observed that "œthe political philosophy advocated for labor by the Roman Catholic Church was quite similar" to the philosophy of the U.S. labor movement. This was no coincidence. Catholic social thought reached Catholic workers in numerous ways. These included diocesan newspapers and a cascade of other Catholic publications, many of which were distributed through parishes. The social thought tradition also was transmitted through more than 100 "œlabor colleges," many of which were conducted by Jesuits. These schools provided union members instruction in law, contract negotiation, economics, and arbitration, as well as in social ethics. The Catholic social tradition also was mediated by the remarkable and widespread tradition of labor priests, men like Peter Dietz, John Ryan, Charles Rice, John Corridan, Clement Kern, Francis Haas, George Higgins, and Edward Boyle, who had close contact with union members and leadership, management and industry leaders, and politicians including Senator Robert Wagner of New York, the framer of the National Labor Relations Act, often called the Wagner Act.
How much was Senator Wagner influenced by Catholic social thought? It is difficult to say. Nevertheless, among Wagner"™s papers pertaining to the drafting of the NLRA are two heavily annotated copies of Pius XI"™s 1931 social encyclical, Quadragesimo anno, delivered on the 40th anniversary of Rerum novarum. Wagner corresponded with Fr. Ryan, and he had extensive contacts with Fr. Haas, who in the era of the National Recovery Act of 1933 served as a member of the National Labor Board (the "œold Board") and on the Advisory Board on Labor with the senator. Wagner converted to Catholicism in the late 1940s.
Fr. Haas, for his part, was very discreet about his relations with politicians and very cautious about drawing public attention to what he called, in a letter written in August 1933, "œthe parallels between the Encyclicals and the NRA." "œNo attempt should be made," he warned his correspondent, who had proposed publishing a pamphlet to this effect, "œto put a Catholic imprimatur, so to speak, on what a good many people regard as a political policy." Haas asserted that his hesitancy was not a surrender to the idea, held by many, that the Church should not speak on industrial and economic questions. Rather, he feared that attacks on the Roosevelt administration would extend to the Church and compromise the Church"™s ability to speak on social issues, while animosity toward the Church would imperil the legislation.
The NLRA embodies many influences, to be sure, and represents the product of many hands. Nevertheless, the views engrained in the Catholic social thought tradition help to illuminate and explain its provisions. They also help to elucidate the predominately Catholic character of the American labor movement. The NLRA marks the only place in our otherwise highly individualistic legal system where the law attempts to enhance individual status through the defense and maintenance of groups.
It bears observing here that were it not for the leadership of the African-American Protestant churches, there would have been no Civil Rights Act and no Title VII.
For an illustration of the language that moved this country, I would suggest a rereading of the Rev. Martin Luther King, Jr."™s Letter from a Birmingham Jail of April 16, 1963. The letter is not couched in the language of rights so much as in biblical language and imagery. The claims it makes"”the claims the civil rights movement made on the United States"”are moral and religious. As Dr. King suggests, the equal rights embodied in law derive from our obligation to recognize that we are all children of God:
A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority. Segregation, to use the terminology of the Jewish philosopher Martin Buber, substitutes an "œI-it" relationship for an "œI-thou" relationship and ends up relegating persons to the status of things. Hence segregation is not only politically, economically, and sociologically unsound, it is morally wrong and sinful.
Later in the letter, King wrote that he had heard "œnumerous southern religious leaders admonish their worshipers to comply with a desegregation decision because it is the law," which left him disappointed because "œI have longed to hear white ministers declare: "˜Follow this decree because integration is morally right and because the Negro is your brother."™" King called on white church leadership to act not as a mere "œthermometer" of popular opinion but as "œa thermostat that transform[s] the mores of society." >From a divided and unjust society, he aimed to build, as he said elsewhere, a "œBeloved Community." And to the extent that Title VII and other civil rights legislation have become a bare contest of rights, I think they have lost much of the moral force that once illuminated them.
Now, it is true enough, as the distinguished legal historian Helmut Coing has observed, that common law and civil law represent the only two legal systems the world has known that are not direct expressions of a religious system. It is also true, however, as he notes, that both systems throughout their history have been in a constant conversation with religious sources and insights. "œNo one," Coing writes, "œknows better than the jurist the weaknesses of a social system in which the law prevails. No one knows better that the law only can function in a framework of moral and religious relations."
Law alone is a hollow structure: Without more, it is only an expression of power. Raw power may for a time oppress, but it does not serve as a stable basis for the ongoing cooperation that a social order requires and that a legal order should regularize. "œHow many divisions does the Pope have?" Stalin famously asked. More, it turns out, than he thought, and they operated in a way and with an effectiveness that he could not imagine. The Solidarity union movement in Poland, the People Power revolution in the Philippines, Gandhi"™s movement in India, and King"™s in the United States all demonstrate the authentically human demand for a reasonable order. They also reveal the extraordinary changes that a solidarity of consciences can produce.
Tocqueville observed that the mores of a people are more important than their laws. I might note further that when the mores collapse, the law is impotent to hold an order together. We might wish it otherwise. But, as the German constitutional scholar and former member of Germany"™s constitutional court Ernst-Wolfgang BÃ¶ckenfÃ¶rde rather starkly has reminded us, "œthe liberal, secularized state lives from requirements that it itself cannot guarantee."
Religion really is that hound that we are unable to flee. Religion is that for the sake of which one does everything else. Just as nobody gets away without a religion, no legal system ever can escape raising religious questions: What do we most value? How should we live? What are our lives for? What is my relation to others and what, if anything, do I owe them? What social, political, legal, and economic orders shall we have, and why? Our answers to these questions determine who we are, and we constantly are in the process of responding to them.
Labor and employment law systems everywhere are in crisis. Unions and collective bargaining represent endangered species, and as these social institutions have collapsed, the systems of dispute resolution and participation in workplace decision-making they ground have weakened as well. These developments have not only occurred in the United States. For example, the instability of collective bargaining structures in Germany threatens its highly successful works councils system (a system, incidentally, that originally was sponsored by management). Meanwhile, income inequality across major democracies, including our own, continues to grow, as does job instability, with its attendant ramifications for other social institutions like the family.
As these established employment regimes crumple, nothing has appeared to replace them but simple contractual ordering. Across the world and in varying degrees, we are edging back, at times by default and at times by design, to the legal framework of the 19th century, with its roots in the doctrinaire individualism that informed the Enlightenment. Increasingly, individuals are treated as so many instrumental profit centers, mostly fungible and fully disposable.
It is time for a new conversation between the law and religion about the character of work and its impact on the individual who performs it, as well as renewed thinking about what kinds of economic and work relationships will sustain democracies and contribute to humanity"™s flourishing. We might start this conversation from the perspective that "œwork is for man and not man for work," and with the realization that work is a transitive activity that may begin with some limited task or goal, but that ends in the constitution of the person who performs it and thereby of society. Work is inherently social and moral. It is, after all, how the majority of us spend the majority of our lives.
Thomas C. Kohler is a professor at Boston College Law School, where he teaches labor and employment law. His essay is drawn from the annual Piper Memorial Lecture, which he delivered at Chicago-Kent School of Law last March. The full version is due to appear in the Chicago Kent Law Review.