Humani Generis Research Articles

Enemy of Mankind or Just No Powerful Friends Left? Insights from International Relations about the Efficacy of the icc

Applying both constructivism and the English school of international relations, the icc is shown to be founded upon, and simultaneously constitutive of, a vision of universally shared humanity. However, the icc performs this role of norm-entrepreneurship within a structure premised upon Westphalian notions of sovereignty that are not conducive to this vision. This tension is embedded within the Rome Statute due to compromises struck in its drafting between those actors who envisioned a solidarist ‘world community’, and those attached to the status quo of an ‘international society’. These compromises have given rise to power relations that undermine the vision of ending impunity for international crimes. Consequently, it is not simply by one’s conduct that they come before the Court as a hostis humani generis, but rather because they have no powerful friends left. The efficacy of the icc is contingent on this transition between two competing conceptions of international society.

Implications of the Application of the 'Hot Pursuit' Principle in the Cyberspace: An Analysis of the Case 'Microsoft v. United States of America'

The hot pursuit principle is defined as the right of a nation-state to pursue and seize a non-national vessel suspected of having committed a crime within the nation-state's internal waters and territorial sea and arrest it on the high sea (Churchill & Lowe, 1999). The hot pursuit allows a nation-state to enforce its laws and regulations against non-national ships that flee onto the high seas where the nation-state lacks jurisdiction (Reuland, 1993). Pursuit must be continuous and it must end as soon as the chased ship enters into the territorial sea of its own nation-state or a third nation-state’s (Churchill & Lowe, 1999). The hot pursuit is officially recognized by the Convention on the Law of the Sea (UNCLOS) from 1982. In December 2013, a New York district Court judge issued a warrant requesting Microsoft to produce emails and private information associated to particular accounts hosted by Microsoft. The data was storage on a Hotmail server located in Ireland and was related to a drug trafficking investigation (HLR, 2015; Scott, 2014). According to the U.S. Department of Justice (DoJ), the U.S. government has the right to demand the emails of anyone in the world as long as the email provider has headquarters within U.S. borders (Thielman, 2015). Microsoft refused to deliver the names and accounts of the server stored in Ireland arguing that a U.S. Court has no jurisdiction over information stored out of U.S. territory. Similarly, the Irish government supported the Microsoft opinion and claimed that U.S. Courts do not have sovereignty to issue search warrants to be executed abroad (Goldman, 2016). Using the Microsoft case, this paper intends to analyze the implications of applying the “hot pursuit” principle into the cyber domain. For this purpose, the analysis will be centralized in the arguments and allegations of the involved parties by using the codification software Atlas-Ti. The research design will follow an inductive approach and will focus in the arguments about why one nation-state’s sovereignty should be applicable or not beyond the borders of its own territory. This proposal is important because it presents a concrete opportunity to study a long-time-suggested academic proposal of applying some of the elements of the law of the sea into the cyberspace. At this point existent studies focus in: a) applying the categories included in UNCLOS as part of a national security policy over the Internet packets, b) applying anti-piracy rules in case of copyright infringement and c) protecting the under-sea cables (Kalpokienė & Kalpokas, 2012; Sechrist, 2010; Steven, 2001). References Churchill, R. R., & Lowe, A. V. (1999). The Law of the Sea. Manchester University Press. Goldman, D. (2016). Microsoft is fighting the DOJ too. Retrieved March 31, 2016, from http://money.cnn.com/2016/02/23/technology/microsoft-ireland-case/ HLR. (2015). In re warrant to search a certain email account controlled & maintained by Microsoft Corp. Harvard Law Review, 128(3), 1019 – 1026. Kalpokienė, J., & Kalpokas, I. (2012). Hostes Humani Generis: Cyberspace, the Sea, and Sovereign Control. Baltic Journal of Law & Politics, 5(2), 132–163. Retrieved from http://www.degruyter.com/view/j/bjlp.2012.5.issue-2/v10076-012-0014-y/v10076-012-0014-y.xml?format=INT Reuland, R. C. (1993). The customary right of hot pursuit onto the high seas : annotations to article 111 of the Law of the Sea Convention. Virginia Journal of International Law. -. Scott, M. (2014, December 24). Ireland Lends Support to Microsoft in Email Privacy Case. The New York Times. New York, New York, USA. Retrieved from http://bits.blogs.nytimes.com/2014/12/24/ireland-lends-support-to-microsoft-in-email-privacy-case/?_r=0 Sechrist, M. (2010). Cyberspace in Deep Water: Protecting Undersea Communications Cables By Creating an International Public-Private Partnership. Harvard - Belfer Center for Science and International Affairs. Retrieved from http://belfercenter.ksg.harvard.edu/publication/20710/cyberspace_in_deep_water.html?breadcrumb=%2Fexperts%2F2223%2Fmichael_sechrist Steven, B. (2001). Innocent Packets? Applying navigational regimes from the Law of the Sea Convention by analogy to the realm of the cyberspace. Naval Law Review, 48, 56–83. Retrieved from http://unclosdebate.org/evidence/1115/unclos-provisions-transit-passage-provide-good-model-international-agreements Thielman, S. (2015). Microsoft case: DoJ says it can demand every email from any US-based provider. Retrieved March 31, 2016, from http://www.theguardian.com/technology/2015/sep/09/microsoft-court-case-hotmail-ireland-search-warrant

Book Review: The Suspended Middle: Henri de Lubac and the Renewed Split in Modern Catholic Theology

The Suspended Middle: Henri de Lubac and the Renewed Split in Modern Catholic Theology. By John Milbank. Second edition. Grand Rapids, Mich.: Eerdmans Publishing, 2014. xiii + 120 pp. $25.00 (paper).In this second edition of The Suspended Middle, not enough has changed substantively so as to suggest that readers familiar with Milbank's position should update their copy. Apart from the new subtitle, other amendments to the text include the addition of a few more historical and contextual qualifiers (like the paragraph about de Lubac's involvement in the Nijmegen Declaration on pp. 7-8), and the insertion of further textual support (like the paragraph about de Lubac's book Brief Catechesis on Nature and Grace on pp. 53-54). Nevertheless, the of the text's publication affords the opportunity for a renewed recommendation to read it. This is a short yet explosive book on Henri de Lubac, which engages and challenges from start to finish.As a text of fewer than 150 pages, the book is not intended as a fulsome historical or theoretical introduction to de Lubac or to the Ressourcement movement (loosely defined) with which he was associated. Yet for the professional who is not a specialist in twentieth-century Catholic thought, and likewise for the graduate student, the book will serve to whet the appetite for further study of a thinker whose thought has been neglected in the Anglophone world: de Lubac's study Surnaturel-which Milbank hails as arguably the key theological text of the twentieth century (p. 3)-has still not been translated into English. And as Milbank highlights the paradoxical quality of de Lubac's ideas about the operation of divine grace within creation, the Thomistic notion of the natural desire for the supernatural, and the doctrine of the imago Dei, readers are of course also afforded a lucid treatment of significant aspects to Milbanks own theological approach and agenda.The books opening chapter establishes de Lubac as a distinctive Catholic voice in wartom Europe who by 1950 and the publication of the encyclical Humani Generis had aroused enough papal suspicion to earn him a temporary ban on teaching and pubhshing. We meet him as a critic of neoScholasticism and commentarial Thomism, and a theologian whose mode of study and argumentation favored a deep attention to history-the tracing out of event and sign in continuous process (p. 13)-rather than an atemporal attention to specific issues and themes. In this note about de Lubac s patient historical method, the reader locates a significant point of divergence between him and Milbank. For as Adam G. Cooper has suggested in his recent book Naturally Human, Supematurally God: Deification in Pre-Conciliar Catholicism ( Fortress Press, 2014), Milbanks references to the evolution of the Christian understanding of salvation as deification (p. …

Taking the Fight to Malicious Cyber Actors: Moiety Money, Letters of Marque and Reprisal, & the De-Anonymization of the Internet

We are in a cyber-war and our federal government, which by its very Charter was organized to provide for the “common defense”, is failing and failing miserably. This paper suggests that if the power of the crowd is authorized to fight back, we can realize an Internet well policed by the United States resulting in a “better... stronger... faster” Internet. Most importantly, we will be rewarded by this effort with significant economic growth now lost to data stolen by these 21st Century cyber hostis humani generis.

English

The term ‘crimes against humanity’ has been widely used by different people to mean different things. The media has referred the term to include a variety of contemporary political events that they have reported on. The media practitioners and social workers have used the term loosely to refer to situations where the governments or any other people holding power, authority or influence have done any wrong. Politicians and political scientists deploy the term while referring to unacceptable and unfair activities in the political field. To International law scholars, the term has been used to refer to a specific crime under international criminal law, as distinguished from Genocide and War Crimes. This paper traces how crimes against humanity as a category of international crimes emerged and its essential requirements and how courts and institutions have developed and interpreted it, since the term crimes against humanity has acquired both a legal as well as socio-political perspective. Key words: Crimes against humanity, political violence, hostis humani generis.

The Pirate and the Sovereign: Negative Identification and the Constitutive Rhetoric of the Nation-State

Abstract Pirates are commonly referred to as hostis humani generis, the enemy of all. This essay explores the contours of this figuration through an analysis of early nineteenth century American legal and political texts concerning piracy. I argue that pirate rhetorics in this period are part of a constitutive rhetoric of sovereignty, principally identified with Emerich de Vattel’s famous definition of sovereignty in The Law of Nations. Through an analysis of the textual milieu surrounding the U.S. Supreme Court’s 1820 decision in United States v. Smith, I show that the pirate is figured as an anti-sovereign, which allows for the consolidation of an otherwise differential system of international relations characterized by liberal, self-interested, sovereign nations. In becoming hostis humani generis, the pirate enters into an antagonistic relationship with the sovereign that provides the ontological ground for the theory of sovereignty characteristic of modern thought in international law. Supplementing Charland’s theory of constitutive rhetoric with Laclau and Mouffe’s work on antagonisms in social relations, I argue that focusing on negative identification, which is an essential component of any constitutive rhetoric, opens up unique avenues for analysis that may otherwise be obscured by attending solely to the positive dimensions of a rhetoric.

Pious Polygenism and Original Sin

In this very short paper, I argue that it is possible to harmonize the doctrine of original sin, as western Christendom has traditionally understood it, with a polygenist account of human ancestry. To this end, particular attention is paid to the encyclical Humani Generis (1950), in which Pope Pius XII strongly cautions against polygenist ideas.

Penegakan Hukum terhadap Pembajakan di Laut melalui Yurisdiksi Mahkamah Pidana Internasional

The international community, nowadays is facing the most serious problem of the piracy in the sea on a large scale than ever before. Todays piracy is destroying and disturbing the shipping industry worldwide with the modern way. The problem of piracy becomes increase day by day rather than to decrease. It is universally called as hostis humani generis. The piracy today is directed against victims from around the world, creates harms that are felt by the international community, and involves many of the same violation, as like as a murder and hostage-taking, that are used to commit the crimes within the jurisdiction of International Criminal Court (ICC). The main purpose of this paper is to describe the piracy in details which could be seen in some international laws concerning this problem as for UNCLOS 1982 and SUA Convention 1988. This paper also will elaborate how piracy could be called as a crime under international law, as well as the jurisdiction of the ICC. This permanent international judicial body is empowered to prosecute crimes of concern to the international community as a whole, in accordance with the Rome Statute 1998 and ICC is expected to fullfil the impunity as the biggest obstacle for countries to bring the pirates into the justice.

Vom Out-Law zum In-Law: Piraterie, Recht und Familie in Pirates of the Caribbean

In order to analyse the relationship between piracy, law and family, the article takes a look at the popular Pirates of the Caribbean films. Hollywood turns out to link piracy with family; instead of forming the usually assumed contrast, both are closely intertwined entities. The film series can therefore be seen as an unorthodox revision of the pirate’s common juridical classification as the anti-social hostis humani generis. It becomes apparent that, surprisingly, family sometimes may develop from piracy.

Pirate Trials, the International Criminal Court, and Mob Justice: Reflections on Postcolonial Sovereignty in Kenya

Pirate Trials, the International Criminal Court, and Mob Justice: Reflections on Postcolonial Sovereignty in Kenya Mateo Taussig-Rubbo (bio) But jurisdiction is not merely an ambit or sphere (better described in this case as “competence”); it is basically—as is visible from the Latin origin of the word itself, jurisdictio—a legal power, hence necessarily a legitimate power, “to state the law” (dire le droit) within this ambit, in an authoritative and final manner. —Prosecutor v. Tadic1 Jurisdiction is typically understood in relation to territory or nationality.2 This conceptualization complements a global order of separate sovereign states, each enjoying the power to judge within its territory and to create law for its citizens. Universal jurisdiction, by contrast, entails the ability to judge offenders who have no connection to the state sitting in judgment. Decoupled from territory and nationality, the exercise of universal jurisdiction raises the question of whether it undermines a global order of sovereign states by allowing one state to reach into the affairs of another. This question is underscored by the crimes that, in the twentieth century, were found to give rise to universal jurisdiction, such as crimes against humanity that, in one common formulation, “shock the conscience” of mankind. There is an apparent tension between a global order of state sovereignty and the exercise of universal jurisdiction that either promises to curb sovereign abuses or threatens to conceal imperial meddling behind a judicial façade. There are, however, other ways in which the relation between state sovereignty and universal jurisdiction might be construed. For instance, the figure of the pirate, the original object of universal jurisdiction, suggests a different relationship. The pirate acts in a zone beyond sovereignty—the high seas—and acts not on a sovereign’s behalf. The exercise of universal jurisdiction in prosecuting piracy thus seems to complement a global order of territorial states. The pirate was hostis humani generis, the enemy of all mankind, or at least the enemy of the state system.3 Conversely, the perpetrator of crimes against humanity—the modern enemy of all mankind—often claims to act in the name of the state. Presented thus, we have two distinct conceptions of the relationship between sovereignty and universal jurisdiction. Over the past few years in Kenya, various stories have unfolded side by side that provide a more nuanced illustration of the ways that sovereignty and universal jurisdiction interact. On the one hand, Kenya has been unable to establish a domestic process to punish the political and business elites said to be behind the vicious ethnic [End Page 51] violence occasioned by the contested election in 2007. In response, the prosecutor of the International Criminal Court (ICC) has initiated proceedings on his own motion and asserted his intention to prosecute a handful of perpetrators for crimes against humanity. On the other hand, over roughly the same time period, starting in 2006, Kenya has accepted delivery of and begun prosecuting Somali pirates captured by the naval forces of various wealthy states on the high seas, asserting its universal jurisdiction over them. For a moment, then, we have in Kenya both the oldest and one of the newest objects of universal jurisdiction. Even as Kenya imports the original “enemy of all”—the pirate—it prepares to export to The Hague the new “enemy of all”—the perpetrator of crimes against humanity. How should we understand this conjunction in Kenya? Does the profound tension produced by the dual appearance of figures from such different historical moments constitute a contradiction? Are the two stories expressive of different understandings of sovereignty and global order, or do they fit together as a coherent whole? Is the twentieth-century extension of universal jurisdiction from piracy to crimes against humanity expressive of the roughly contemporaneous decoupling of formal sovereignty from power after World War II and decolonization? Drawing on brief visits to Kenya in 2008, 2009, and 2010, including firsthand observations of pirate trials in Mombasa, I take up these questions. The abstract problem of the relation between universal jurisdiction and state sovereignty should be localized and theorized, I suggest, in relation to the postcolonial African sovereign state, its relations with more wealthy states, and its relation...

Vom Out-Law zum In-Law: Piraterie, Recht und Familie in Pirates of the Caribbean. Current Problems of Gypsy Studies/From Out-Law to In-Law: Piracy, Law and Family in Pirates of the Caribbean

In order to analyse the relationship between piracy, law and family, the article takes a look at the popular Pirates of the Caribbean films. Hollywood turns out to link piracy with family; instead of forming the usually assumed contrast, both are closely intertwined entities. The film series can therefore be seen as an unorthodox revision of the pirate’s common juridical classification as the anti-social hostis humani generis. It becomes apparent that, surprisingly, family sometimes may develop from piracy.

Doing Justice to the Political: The International Criminal Court in Uganda and Sudan

International criminal justice has become a weapon in political struggles in Uganda and Sudan. In this light, this article discusses the political meaning of the International Criminal Court's judicial interventions. It argues that the ICC, presented by its advocates as a legal bastion immune from politics, is inherently political by making a distinction between the friends and enemies of the international community which it purports to represent. Using original empirical data, the article demonstrates how in both Uganda and Sudan warring parties have used the ICC's intervention to brand opponents as hostis humani generis, or enemies of mankind, and to present themselves as friends of the ICC, and thus friends of the international community. The ICC Prosecutor has at times encouraged this friend�enemy dichotomy. These observations do not result in a denunciation of the Court as a �political institution�. On the contrary: they underline that a sound normative evaluation of the Court's activities can be made only when its political dimensions are acknowledged and understood. To show that justice has its practical and ideological limits is not to slight it. � The entire aim is rather to account for the difficulties which the morality of justice faces in a morally pluralistic world and to help it recognize its real place in it � not above the political world but in its very midst. J. Shklar, Legalism: Law, Morals and Political Trials (1986), at 122�123.

Imagining the International Community: The Constitutive Dimension of Universal Jurisdiction

The assertion of prescriptive and adjudicative universal jurisdictions by some countries in relation to a handful of offenses that are classified as international or universal crimes (e.g. genocide) has led to a great deal of controversy. Those who favor universal jurisdiction argue that certain acts (often crimes) affect all of us, not just the specific individual or group of victims or the country of which the victims are nationals. It is therefore legitimate, they argue, for any state to punish or suppress such acts regardless of any traditional jurisdictional connection between the alleged acts and the state asserting jurisdiction. The availability of universal jurisdiction is premised on the presumed effect of certain crimes on humanity as a whole. Those who commit these offenses are referred to as hostis humani generis —enemies of human kind. Skeptics argue that the idea of universal jurisdiction is conceptually incoherent, inconsistent with the principle of political self-determination, and has great potential to be an instrument of political mischief. While they disagree on the conceptual coherence and utility of the notion of universal jurisdiction, both proponents and opponents view its function in purely instrumental terms, to provide the condition for punishing or suppressing certain offenses that affect all of us. This article argues that universal jurisdiction also serves another, less articulated purpose. It has a constitutive function as well. It is partly a process through which the identity of the international community is imagined and enacted. It is an expression of a sense of ourselves (a community of humankind) at given moments of time. This article argues that neglect of this constitutive dimension leads to an incomplete analysis of universal jurisdiction.

The Sacred Monster of Thomism: An Introduction to the Life and Legacy of Réginald Garrigou-Lagrange, O.P (review)

Reviewed by: The Sacred Monster of Thomism: An Introduction to the Life and Legacy of Réginald Garrigou-Lagrange, O.P John P. Galvin The Sacred Monster of Thomism: An Introduction to the Life and Legacy of Réginald Garrigou-Lagrange, O.P. By Richard Peddicord, O.P. (South Bend, IN: St. Augustine's Press. 2005. Pp. xii, 250. $25.00. ISBN 978-1-587-31752-1.) After studies at Bordeaux, Flavigny, and Paris and after teaching philosophy and dogmatic theology for four years at Le Saulchoir, his order's school of theology, the French Dominican theologian Réginald Garrigou-Lagrange (1877–1964) taught dogmatic and spiritual theology at the Angelicum in Rome from 1909 to 1959. Garrigou-Lagrange, strongly impressed by his teacher Ambroise Gardeil, O.P., was a strident proponent of a strict neo-Thomist theology, a prolific author of neo-Scholastic textbooks on dogmatic and spiritual theology, and an influential consultant to the Holy Office. He was a prominent early opponent of the nouvelle théologie (cf."La nouvelle théologie: où va-telle?," Angelicum 23 [1946] 126–45) propounded in the mid-twentieth century by such theologians as Yves Congar, O.P., and Henri de Lubac, S.J., and he influenced the strong criticism of this thought in Pope Pius XII's important encyclical Humani Generis (1950).Garrigou-Lagrange also directed numerous doctoral dissertations, including those of M.-D. Chenu, O.P., and Karol Wotjy/la. Hostile to the anticlerical Third Republic and absent from France during most of World War II, he supported Marshal Petain's Vichy government and is reported by Jacques Maritain to have admonished Maritain, at one time a personal friend, that his support of General Charles de Gaulle's Resistance during the war was a mortal sin. Due to advanced age and declining health, Garrigou Lagrange participated little in the preparatory work for the Second Vatican Council and not at all at the Council itself. [End Page 840] In The Sacred Monster of Thomism (a title derived from a remark of François Mauriac), Richard Peddicord, O.P., currently president of the Aquinas Institute of Theology in St. Louis, provides the first book-length treatment of a once influential confrère whose extensive writings have been neglected in recent decades. From a perspective almost invariably sympathetic to Garrigou-Lagrange's theology and spirituality, although not to his political judgments, Peddicord outlines Garrigou-Lagrange's life and recounts his controversies with such adversaries as Henri Bergson, Maurice Blondel, Chenu, and Maritain. Apart from compact accounts of Garrigou-Lagrange's conception of revelation and the nature of theology, Peddicord devotes surprisingly little space to presentation and analysis of Garrigou-Lagrange's extensive theological publications and even less to clear and objective accounts, based on the primary sources, of the positions Garrigou-Lagrange opposed; even the influential attack on the nouvelle théologie is examined only cursorily. The occasional polemical critiques of such contemporary American authors as Roger Haight, Monika Hellwig, and Elizabeth Johnson are out of place. Nonetheless, although not all will agree with the positions defended by Garrigou-Lagrange and Peddicord, the historical information included in this volume will be of interest even to readers who do not share Peddicord's optimistic assessment of the value of his fellow Dominican's contribution to the future development of Catholic theology. Some corrections on details: Nazi Germany annexed only part of Czechoslovakia in 1938 (p. 96). On p. 139, n. 13, in the citation from Garrigou Lagrange, read "la véritable doctrine thomiste" for "la extrêmes doctrine Thomiste." Spot checks of the index indicate that all page references to Patrick Granfield, Adolf Hitler, Joseph Komonchak, Karl Rahner, Friedrich Schleiermacher, Paul Tillich, and Herbert Vorgrimler are inaccurate. John P. Galvin The Catholic University of America Copyright © 2008 The Catholic University of America Press

In the Footsteps of Raphael Lemkin

In the Footsteps of Raphael Lemkin

WELL-PROTECTED ENEMIES OF MANKIND

[T]he torturer has become—like the pirate and the slave trader before him—hostis humani generis, an enemy of all mankind. (Kaufman J. in Filártiga v. Peña-Irala 630 F. 2d 876, 890 (2d Cir.,1980)).The European Court of Human Rights’ decision in Al-Adsani v. UK (2002) 34 E.H.R.R. 273 does not openly reject the view that torturers have become enemies of all mankind. It does however affirm that they can protect themselves abroad with a magic weapon that neither pirates nor slave traders usually possessed. This is the shield of sovereign immunity, which prevents State torturers from being tried before courts of a foreign State. In Al-Adsani, the ECHR, by a bare majority of 9 votes to 8, decided that States and their officials can invoke immunity even where they are accused of breaches of peremptory norms of international law (ius cogens), i.e. norms which, by definition, admit of no derogation (Article 53 of the Vienna Convention on the Law of Treaties).

Fides et Ratio et…

Although Augustine, Anselm and Aquinas are often cited in support of faith and reason, the doublet achieved prominence in that form only in the nineteenth century. The encyclical Fides et ratio can be seen as forming Aeterni patris, humani generis, and Dei verbum into a tradition. Indeed, it looks back to the nineteenth century and remains at best uninterested in twenthieth-century thought. One difficulty with the expression is that each of faith and reason invites abstraction from all contexts, including exegesis and love, imagination, and sacrement. Properly undestood, faith and reason implies faith and reason and... The encyclical is unclear at crucial moments. Is begins to speak of reason, then slides into talk of rationalism. It regards a crisis of rationalism as leading to nihilism, but the conclusion is haslty drawn, at best. It underlines the importance of metaphysics and is critical of the end of metaphysics, but confuses different sense of the word.

Interactions Between Science & Religion

Though I find it changing now, my approach to the science and religion issue had been close to what Stephen Jay Gould (1999) calls ‘‘NOMA’’ or Non-Overlapping Magisteria. He uses the word ‘‘magisteria’’ to denote domains of authority in teaching; and he sees the domain of science as covering the empirical realm, while the domain of religion ‘‘extends over questions of ultimate meaning and moral value’’ (p. 6). The important thing for Gould is that these domains are mutually exclusive; they do not overlap, which means that they do not interfere with each other. This is a nice, neat solution to the problem of the relationship between science and religion, a problem that seems to be centered in the late-20th century United States on the issue of teaching about creationism as an alternative to or replacement for evolution. By arguing for NOMA, Gould is saying in effect that creationism has no place in the science classroom because it does not belong to the empirical realm, and like most biologists I agree with Gould. NOMA is also a fairly accurate description of the official teaching of the Catholic church on the relationship between religion and science as presented in the 1950 encyclical Humani Generis where Pope Pius XII states that the study of physical evolution was outside of his purview, his magiste-

Thomism and the Nouvelle Théologie

The Thomist 64 (2000): 1-19 THOMISM AND THE NOUVELLE THEOLOGIE AIDAN NICHOLS, 0.P. Blackfriars Cambridge, Great Britain The purpose of this essay is to consider a particular incident in the theological history of this century, one with a significance extending beyond its own time and place.1 This is the intellectual clash of arms between the chief representatives of what would shortly be called la nouvelle theologie2-Jean Danielou, Henri de Lubac, and others-and the classical French Dominican Thomism of the Revue Thomiste, in the years 1946 to 1948. The Dominican intervention was an important moment in the chain of events that led to the promulgation of Pius XII's encyclical Humani Generis, in 1950, on false trends in modern teaching, and to the eclipse-temporary in nature as it would prove-of the reputations of de Lubac and the others which followed in that encyclical's wake. The wider significance of the episode is that it raises the question of the relation between, on the one hand, the Thomist tradition, and, on the other, that Neopatristic theology, consciously open to certain aspects of modernity while retaining a primary allegiance to the Christian sources in Bible and Fathers, which can be regarded as the chief inspiration of the Second Vatican Council and the predominant 1 Fr. Romanus Cessario, O.P., has already signaled the importance of this episode in the pages of this journal: see idem, "An Observation on Robert Lauder's Review of G. A. McCool, S.J.," The Thomist 56 (1992): 701-10. 2 For general accounts, see: A. Darlapp, "NouvelleTheologie," Lexikon(Ur Theologie und Kirche 7 (Freiburg, 1963), 1060; T. Deman, "Franzosiche Bemiihungen um eine Erneuerung der Theologie," Theologische Revue 46 (1950): 61-92; A. Nichols, O.P., Catholic Thought since the Enlightenment: A Survey (Pretoria and Leominster, 1998), 134-38. 1 2 AIDAN NICHOLS, O.P. theological influence on the pontificate of John Paul II. One has only to ponder the fact that both leaders of the nouvelle theologie mentioned above were made cardinals (the first by Paul VI, the second by the present pope), whereas their main Dominican critic, Marie-Michel Labourdette, entered the most total obscurity until the Revue Thomiste devoted an entire issue to him, under the title Un maltre en theologie, in 1992.3 Owing to a combination of perfectionism and the wounds sustained in this struggle, which the French Church historian Etienne Fouilloux does not hesitate to call "the only theological debate of any importance at least in France, between the condemnation of modernism and the Second Vatican Council,"4 Labourdette largely restricted himself to writing notices of books for the Revue Thomiste (though, admittedly, these were both numerous and judicious). In the course of the 1970s he was removed from teaching at the Dominican study house in Toulouse , owing to what his biographer, Henri Donneaud, calls discreetly "les malheurs des temps."5· His principal work, the Cours de theologie morale-a commentary, but of a speculative and at times original kind, on the Secunda Pars of Thomas's Summa Theologiae-has enjoyed a posthumous career as a muchsought -after duplicated or photocopied work for many years. The story opens with the publication in 1946 of an essay entitled "La theologie et ses sources" by Pere Labourdette, professor in the Dominican studium of the Province of Toulouse (at that time situated at Saint-Maximin in Provence) and editor of the Revue Thomiste, where the article appeared. It took the form of a studied criticism of two projects just launched by the French Jesuits: Sources Chretiennes, under the general editorship ofJean Danielou and Henri de Lubac, and the series Theologie, which was under the direction of the Jesuit faculty of Lyons-Fourvieres with Henry Bouillard, an historical theologian specializing in the 3 Un maitre en tbeologie: Le Pere Marie-Michel Labourdette, O.P. = Revue Tbomiste 92, no. 1 (1992). Cited below as Mf. 4 E. Fouilloux, "Dialogue theologique? (1946-1948)," in S.-T. Bonino, O.P., ed., Saint Tbomas auXXe siecle: Actes du colloque Centenairede la "Revue Tbomiste." Toulouse, 25-28 mars 1993 (Paris 1994): 153. Cited below as DT. 5 H. Donneaud, 0.P., "Une vie au service...

Pope Pius XI's "Encyclical" Humani Generis Unitas Against Racism and Anti-Semitism and the "Silence" of Pope Pius XII

In June 1938, the eighty-one-year-old Achille Ratti, who had served as Pope Pius XI since 1922, exasperated by the exaggerated nationalism and racism of Nazi Germany, commissioned an encyclical condemning these moral evils. Quickly drawn up by three Jesuit priests, and translated into Latin by another, it was presented to Vladi mir Ledochowski, the General of their Order, at the end of September 1938.1 Pius XI died the evening of 9-10 February 1939. The draft of the encyclical denouncing racism, together with the address he planned to present to the Italian bishops on the tenth anniversary of the Lateran Accords, were found on his desk.2 His secretary of state and chief collaborator Eugenio Pacelli, who became Pope Pius XII on 2 March 1939, decided to shelve both. Did the condemnation of ra cism and antisemitism in Humani Generis Unitas (The Unity of the Human Race) reflect the thought of Pius XI? Did it similarly reflect the sentiments of Pius XII? If so, why did Pope Pius XII refuse to