BOSTON COLLEGE LAW BOSTON COLLEGE LAW SCHOOL PUBLIC LAW AND LEGAL THEORY RESEARCH PAPER SERIES RESEARCH PAPER NO. 38 Aay21,2004 John Paul ll, John Courtney Murray, and the Relationship Between Civil Law and Moral Law: A Constructive Proposal for Contemporary American Pluralism Gregory A. Kalscheur Assistant Professor, Boston College Law School This paper can be downloaded without charge from the Social science Research Network http://ssrn.com/abstract=550201
BOSTON COLLEGE LAW BOSTON COLLEGE LAW SCHOOL PUBLIC LAW AND LEGAL THEORY RESEARCH PAPER SERIES RESEARCH PAPER NO. 38 May 21, 2004 John Paul II, John Courtney Murray, and the Relationship Between Civil Law and Moral Law: A Constructive Proposal for Contemporary American Pluralism Gregory A. Kalscheur Assistant Professor, Boston College Law School This paper can be downloaded without charge from the Social Science Research Network: http://ssrn.com/abstract=550201
John Paul ll, John Courtney murray, and the relationship between Civil Law and Moral Law: A Constructive Proposal for Contemporary American pluralism Gregory A. Kalscheur, SJ A September 2003 USA TODAY/CNN/Gallup Poll found that Americans are content to see "In God We Trust on coins and a bible on a teacher's desk - but they object to priests and rabbis advising politicians on abortion or the death penalty. Similar objections greeted the July 2003 Vatican statement opposing proposals to give legal recognition to same-sex unions. Senator John Kerry, for example, contended that the statement inappropriately"crossed the line separating church and state in American politics Reactions like these pose a significant challenge to a church whose social teaching includes a call for the recovery of the basic elements of a vision of the relationship between civil law and moral law. John Paul ll issued that call in his 1995 legal justification for contemporary attacks on human life like abortion and euthanasia 9 encyclical Evangelium Vitae, in response to what he characterized as a trend to demand a "as if they were rights which the state, at least under certain conditions, must acknowledge as belonging to citizens. In the face of this trend, the Pope advocates a jurisprudential vision which includes the"doctrine on the necessary conformity of civil law with moral law, a doctrine"which is in continuity with the whole tradition of the church. While this vision is"put forward by the church, the Pope notes that it is"also part of the patrimony of the great juridical traditions of humanity. Shortly after Evangelium Vitae appeared, moral theologian Richard McCormick, S J suggested that the encyclical's discussion of the relationship of the moral law to the civil law would remain the most controversial part of the encyclical"after the dust settles. In the U.S. context, the controversial aspect of this discussion stems, in large part, from the plurality of moral views that exist in American society regarding issues Assistant Professor of Law. Boston College Law School, LL. M. 2003. Columbia Law School J.D., 1988, Michigan Law School; S.T. L, 2002, M.Div, 2001, Weston Jesuit School of Theology, BA 1985, Georgetown University. See Larry Copeland, Church-and-State Standoffs Spread over USA, USA TODAY, Sept 30, 2003 at al5. 3 pavid R Guarino, Kerry Raps Pope: Senator Fuming Over Gay Marriage Order,BOSTON HERALD, Aug 2, 2003, at I. The document, Considerations Regarding Proposals to Give Legal Recognition to Unions between Homosexual Persons, was promulgated on July 31, 2003 by the Congregation for the Doctrine of the Faith. See 33 ORIGINS 177(Aug. 14, 2003) Pope John Paul Il, EVANGELIUM VITAE (71(1995)[hereinafter EVANGELIUM VITAE Id at68 ld at72 Id at 1 Richard A McCormick, S.J., The Gospel of Life, 172 AMERICA 12(April 29, 1995), quoted in Kevin P. Quinn, S.J., Whose Virtue? Which Morality? The Limits of Law as a Teacher of virtue-A Comment on Cathleen Kaveny, in CHOOSING LIFE: A DIALOGUE ON EVANGELIUM VITAE 150(K Wildes A Mitchell eds, 1997). hereinafter CHOOSING LIFE
1 John Paul II, John Courtney Murray, and the Relationship Between Civil Law and Moral Law: A Constructive Proposal for Contemporary American Pluralism Gregory A. Kalscheur, S.J.1 A September 2003 USA TODAY/CNN/Gallup Poll found that Americans are content to see “In God We Trust” on coins and a Bible on a teacher’s desk – but they object to priests and rabbis advising politicians on abortion or the death penalty.2 Similar objections greeted the July 2003 Vatican statement opposing proposals to give legal recognition to same-sex unions. Senator John Kerry, for example, contended that the statement inappropriately “crossed the line” separating church and state in American politics.3 Reactions like these pose a significant challenge to a church whose social teaching includes a call for the recovery of “the basic elements of a vision of the relationship between civil law and moral law.”4 John Paul II issued that call in his 1995 encyclical Evangelium Vitae, in response to what he characterized as a trend to demand a legal justification for contemporary attacks on human life like abortion and euthanasia, “as if they were rights which the state, at least under certain conditions, must acknowledge as belonging to citizens.”5 In the face of this trend, the Pope advocates a jurisprudential vision which includes the “doctrine on the necessary conformity of civil law with moral law,” a doctrine “which is in continuity with the whole tradition of the church.”6 While this vision is “put forward by the church,” the Pope notes that it is “also part of the patrimony of the great juridical traditions of humanity.”7 Shortly after Evangelium Vitae appeared, moral theologian Richard McCormick, S.J. suggested that the encyclical’s discussion of the relationship of the moral law to the civil law would remain the most controversial part of the encyclical “after the dust settles.”8 In the U.S. context, the controversial aspect of this discussion stems, in large part, from the plurality of moral views that exist in American society regarding issues 1 Assistant Professor of Law, Boston College Law School, LL.M., 2003, Columbia Law School, J.D., 1988, Michigan Law School; S.T.L., 2002, M.Div., 2001, Weston Jesuit School of Theology; B.A., 1985, Georgetown University. 2 See Larry Copeland, Church-and-State Standoffs Spread over USA, USA TODAY, Sept. 30, 2003, at A15. 3 David R. Guarino, Kerry Raps Pope: Senator Fuming Over Gay Marriage Order, BOSTON HERALD, Aug. 2, 2003, at 1. The document, Considerations Regarding Proposals to Give Legal Recognition to Unions between Homosexual Persons, was promulgated on July 31, 2003 by the Congregation for the Doctrine of the Faith. See 33 ORIGINS 177 (Aug. 14, 2003). 4 Pope John Paul II, EVANGELIUM VITAE ¶ 71 (1995) [hereinafter EVANGELIUM VITAE]. 5 Id. at ¶ 68. 6 Id. at ¶ 72. 7 Id. at ¶ 71. 8 Richard A. McCormick, S.J., The Gospel of Life, 172 AMERICA 12 (April 29, 1995), quoted in Kevin P. Quinn, S.J., Whose Virtue? Which Morality? The Limits of Law as a Teacher of Virtue – A Comment on Cathleen Kaveny, in CHOOSING LIFE: A DIALOGUE ON EVANGELIUM VITAE 150 (K. Wildes & A. Mitchell eds., 1997). [hereinafter CHOOSING LIFE]
like abortion, physician-assisted suicide, embryonic stem-cell research, and the legal recognition of homosexual unions. Moreover, the often"muddled"understanding of the relationship that should exist between law and morality exacerbates the confusion stemming from the plurality of moral views. Given this social reality, it is difficult to articulate the precise shape and scope of the " necessary conformity" between civil law and moral law that the Pope desires to promote The Pope's extensive jurisprudential reflections in Evangelium Vitae prompt the question I consider in this presentation: How should we understand the doctrine on the necessary conformity of civil law with moral law in a religiously pluralistic democratic relationship between moral values and civil law that is grounded in the tradition of tif o society like that of the United States today? My objective is to articulate a vision of th church's social thought and that can allow the church to contribute credibly and effectively to public discourse regarding the law and public policy in our religiously pluralistic democratic society I will begin by outlining the understanding of the relationship between law and morality John Paul Il articulates in Evangelium Vitae. I will then turn to the understanding of the differentiated relationship of law and morality developed in the work of theologian John Courtney Murray, S.J. It is appropriate to ground contemporary analysis of this issue in the pioneering work of Murray, since, in the words of Cardinal Bernardin, "In]o single figure in American history has had greater impact on how Catholics conceive of the relationship between religion and politics. Finally supplementing Murray's views with insights gleaned from a number of contemporary voices in Catholic social thought, I will suggest six axioms that ought to inform our vision of the appropriate relationship between religious values, the objective moral order, and civil law and public discourse in the context of twenty-first century American pluralism I. The jurisprudence of Evangelium vitae The Pope's jurisprudential reflections begin with a catalogue of tendencies that underlie contemporary claims to legal justification for attacks on human life like abortion and euthanasia. John Paul ii believes these tendencies are rooted in the ethical relativism pervading much of contemporary culture. The first of these tendencies is a claim he characterizes as"a proportionalist approach, an approach of "sheer calculation According to this approach, the life of an unborn or seriously disabled person is only a relative good. This good must be balanced against other goods, and only the moral decision maker in a particular concrete situation can correctly evaluate the goods at stake [O]nly that person would be able to decide on the morality of his choice. The state See Quinn, supra note 8, at 152 (calling for" a more complete exposition of the muddled relation between law and morality, and suggesting the social theory of John Courtney Murray as an appropriate starting point) Joseph Cardinal Bernardin, Religion and Politics: Stating the Principles and sharpening the Issues(Woodstock Forum Address-Georgetown University, Oct 25, 1984), in A MORAL VISION FOR AMERICA 38(John P. Langan, S.J., ed, 1998) I See EVANGELIUM VITAE, supra note 4,170
2 like abortion, physician-assisted suicide, embryonic stem-cell research, and the legal recognition of homosexual unions. Moreover, the often “muddled” understanding of the relationship that should exist between law and morality exacerbates the confusion stemming from the plurality of moral views. 9 Given this social reality, it is difficult to articulate the precise shape and scope of the “necessary conformity” between civil law and moral law that the Pope desires to promote. The Pope’s extensive jurisprudential reflections in Evangelium Vitae prompt the question I consider in this presentation: How should we understand the doctrine on the necessary conformity of civil law with moral law in a religiously pluralistic democratic society like that of the United States today? My objective is to articulate a vision of the relationship between moral values and civil law that is grounded in the tradition of the church’s social thought and that can allow the church to contribute credibly and effectively to public discourse regarding the law and public policy in our religiously pluralistic democratic society. I will begin by outlining the understanding of the relationship between law and morality John Paul II articulates in Evangelium Vitae. I will then turn to the understanding of the differentiated relationship of law and morality developed in the work of theologian John Courtney Murray, S.J. It is appropriate to ground contemporary analysis of this issue in the pioneering work of Murray, since, in the words of Cardinal Bernardin, “[n]o single figure in American history has had greater impact on how Catholics conceive of the relationship between religion and politics.”10 Finally, supplementing Murray’s views with insights gleaned from a number of contemporary voices in Catholic social thought, I will suggest six axioms that ought to inform our vision of the appropriate relationship between religious values, the objective moral order, and civil law and public discourse in the context of twenty-first century American pluralism. I. The Jurisprudence of Evangelium Vitae The Pope’s jurisprudential reflections begin with a catalogue of tendencies that underlie contemporary claims to legal justification for attacks on human life like abortion and euthanasia. John Paul II believes these tendencies are rooted in the ethical relativism pervading much of contemporary culture.11 The first of these tendencies is a claim he characterizes as “a proportionalist approach,” an approach of “sheer calculation.” According to this approach, the life of an unborn or seriously disabled person is only a relative good. This good must be balanced against other goods, and only the moral decision maker in a particular concrete situation can correctly evaluate the goods at stake. “[O]nly that person would be able to decide on the morality of his choice. The state, 9 See Quinn, supra note 8, at 152 (calling for “a more complete exposition of the muddled relation between law and morality,” and suggesting the social theory of John Courtney Murray as an appropriate starting point). 10 Joseph Cardinal Bernardin, Religion and Politics: Stating the Principles and Sharpening the Issues (Woodstock Forum Address – Georgetown University, Oct. 25, 1984), in A MORAL VISION FOR AMERICA 38 (John P. Langan, S.J., ed., 1998). 11 See EVANGELIUM VITAE, supra note 4, ¶ 70
therefore, in the interest of civil coexistence and social harmony, should respect this choice, even to the point of permitting abortion and euthanasia. "12 The second tendency the pope identifies is the claim that the civil law cannot demand that citizens conform to moral standards higher than those acknowledged and shared by all citizens. Hence the law should al ways express the opinion and will of the majority of citizens"and recognize in some cases the right to abortion and euthanasia. 3 unsafe illegal practices, would be unenforceable in practice and, as a result, would oe a third tendency is rooted in prudential and pragmatic concerns. It is claimed that given popular support for abortion and euthanasia in certain circumstances-the legal prohibition and punishment of these practices would inevitably lead to an increase undermine the authority of all law Finally, the Pope describes a viewpoint that might be characterized as a"complete autonomy" claim. This view maintains that, in a modern and pluralistic society, people should be allowed complete freedom to dispose of their own lives as well as the lives of the unborn. "[t is not the task of the law to choose between different moral opinions and still less can the law claim to impose one particular opinion to the detriment of others The Pope believes that these views contribute to the contemporary assertion that the legal system of any society should be based only on what the majority considers moral and actually practices. Because many believe that an understanding of objective truth shared by all is unattainable, the norms governing social coexistence should be based simply on the will of the majority, whatever this may be. " Hence, every politician, in his or her activity, should clearly separate the realm of private conscience from that of public conduct This bifurcation in turn supports"what appear to be two diametrically opposed tendencies. l7 On the one hand, the state is not to adopt or impose any ethical position instead, in the name of freedom of choice, the state's only role is to guarantee[ maximum space for the freedom of each individual, with the sole limitation of not infringing on the freedom and rights of any other citizen On the other hand, public officials, when exercising their duties, are to set aside their own moral convictions "in order to satisfy every demand of the citizens which is ecognized and guaranteed by law' the only moral criterion for the exercise of ones official duties is what is laid down by the law itself. "Individual responsibility is thus ld at 1 4 See id ld EVANGELIUM VITAE, supra note 4,169
3 therefore, in the interest of civil coexistence and social harmony, should respect this choice, even to the point of permitting abortion and euthanasia.”12 The second tendency the Pope identifies is the claim that the civil law cannot demand that citizens conform to moral standards higher than those acknowledged and shared by all citizens. “Hence the law should always express the opinion and will of the majority of citizens” and recognize in some cases the right to abortion and euthanasia.13 A third tendency is rooted in prudential and pragmatic concerns. It is claimed that – given popular support for abortion and euthanasia in certain circumstances – the legal prohibition and punishment of these practices would inevitably lead to an increase in unsafe illegal practices, would be unenforceable in practice and, as a result, would undermine the authority of all law.14 Finally, the Pope describes a viewpoint that might be characterized as a “complete autonomy” claim. This view maintains that, in a modern and pluralistic society, people should be allowed complete freedom to dispose of their own lives as well as the lives of the unborn. “[I]t is not the task of the law to choose between different moral opinions, and still less can the law claim to impose one particular opinion to the detriment of others.”15 The Pope believes that these views contribute to the contemporary assertion that the legal system of any society should be based only on what the majority considers moral and actually practices. Because many believe that an understanding of objective truth shared by all is unattainable, the norms governing social coexistence should be based simply on the will of the majority, whatever this may be. “Hence, every politician, in his or her activity, should clearly separate the realm of private conscience from that of public conduct.”16 This bifurcation in turn supports “what appear to be two diametrically opposed tendencies.”17 On the one hand, the state is not to adopt or impose any ethical position; instead, in the name of freedom of choice, the state’s only role is to “guarantee[ ] maximum space for the freedom of each individual, with the sole limitation of not infringing on the freedom and rights of any other citizen.”18 On the other hand, public officials, when exercising their duties, are to set aside their own moral convictions “in order to satisfy every demand of the citizens which is recognized and guaranteed by law”; the only moral criterion for the exercise of one’s official duties is what is laid down by the law itself.19 “Individual responsibility is thus 12 Id. at ¶ 68. 13 See id. 14 See id. 15 Id. 16 EVANGELIUM VITAE, supra note 4, ¶ 69. 17 Id. 18 Id. 19 Id
turned over to the civil law, with a renouncing of personal conscience, at least in the public sphere The Pope strongly condemns the idolization of democracy that he sees fl from these tendencies. Democracy's moral value is not automatic, nor is the system of democracy a substitute for morality. Instead, the moral value of democracy depends on its conformity to the moral law -"its morality depends on the morality of the ends which are not to be ignored by the democratic system: the dignity of every human person, respect for inviolable and inalienable human rights, and adoption of the common good as the end and criterion regulating political life These values are not rooted in shifting majority opinions, but in acknowledgement of the objective moral law. This objective moral law-the natural law written on the human heart-serves as the obligatory point of reference for civil law itself. Social peace built on some foundation other than the values of human dignity and solidarity frequently proves to be illusory. The interests of the powerful operate to sha consensus, and democracy becomes an empty word. In order to avoid this fate, it is urgently necessary" to"rediscover those essential and innate human and moral values which flow from the very truth of the human being and express and safeguard the dignity of the person. 4+ These values are not created, modified, or destroyed by individuals majorities, or states. Instead, these values can only be acknowledged, respected, and promoted. 25 Moreover, this rediscovery of essential and innate human and moral values must include the recovery of the proper vision of the relationship between civil law and moral law. The Pope recognizes that" the purpose of the civil law is different and more limited in scope than that of the moral law. The civil law cannot take the place of conscience or dictate norms concerning matters outside its competence. The limited competence of the civil law"is that of ensuring the common good of people through the recognition and defense of their fundamental rights, and the promotion of peace and of public morality Because the real purpose of the civil law is to guarantee an ordered social coexistence in true justice, it must ensure that all members of society enjoy respect for certain fundamental rights which innately belong to the person, rights which every positive law 2 EVANGELIUM VITAE, Supra note 4, 70 ld 23 Id at71 See id EVANGELIUM VITAE, supra note 4,171 Dignan. Id. In support of this conception of the limited role of civil law, the Pope cites paragraph 7 of nt can be found VATICAN II: THE CONCILIAR AND POST CONCILIAR DOCUMENTS 799-812(Austin Flannery, O.P., ed, new rev. ed, 1998) For a discussion of the role played by John Courtney Murrays thought in the drafting of Dignitatis Humanae, see JOHN T NOONAN, JR, THE LUSTRE OF OUR COUNTRY: THE AMERICAN EXPERIENCE OF RELIGIOUS FREEDOM 329-53(1998)
4 turned over to the civil law, with a renouncing of personal conscience, at least in the public sphere.”20 The Pope strongly condemns the idolization of democracy that he sees flowing from these tendencies. Democracy’s moral value is not automatic, nor is the system of democracy a substitute for morality. Instead, the moral value of democracy depends on its conformity to the moral law – “its morality depends on the morality of the ends which it pursues and the means which it employs. . . . [T]he value of democracy stands or falls with the values which it embodies and promotes.”21 Certain values are fundamental and are not to be ignored by the democratic system: the dignity of every human person, respect for inviolable and inalienable human rights, and adoption of the common good as the end and criterion regulating political life. These values are not rooted in shifting majority opinions, but in acknowledgement of the objective moral law. This objective moral law – the natural law written on the human heart – serves as the “obligatory point of reference for civil law itself.”22 Social peace built on some foundation other than the values of human dignity and solidarity “frequently proves to be illusory.”23 The interests of the powerful operate to shape consensus, and democracy becomes an empty word. In order to avoid this fate, it is “urgently necessary” to “rediscover those essential and innate human and moral values which flow from the very truth of the human being and express and safeguard the dignity of the person.”24 These values are not created, modified, or destroyed by individuals, majorities, or states. Instead, these values can only be acknowledged, respected, and promoted.25 Moreover, this rediscovery of essential and innate human and moral values must include the recovery of the proper vision of the relationship between civil law and moral law. The Pope recognizes that “the purpose of the civil law is different and more limited in scope than that of the moral law.”26 The civil law cannot take the place of conscience or dictate norms concerning matters outside its competence. The limited competence of the civil law “is that of ensuring the common good of people through the recognition and defense of their fundamental rights, and the promotion of peace and of public morality.”27 Because the real purpose of the civil law is to guarantee an ordered social coexistence in true justice, “it must ensure that all members of society enjoy respect for certain fundamental rights which innately belong to the person, rights which every positive law 20 Id. 21 EVANGELIUM VITAE, supra note 4, ¶ 70. 22 Id. 23 Id. 24 Id. at ¶ 71. 25 See id. 26 EVANGELIUM VITAE, supra note 4, ¶ 71. 27 Id. In support of this conception of the limited role of civil law, the Pope cites paragraph 7 of Dignitatis Humanae, Vatican II’s Declaration on Religious Liberty. The document can be found in VATICAN II: THE CONCILIAR AND POST CONCILIAR DOCUMENTS 799-812 (Austin Flannery, O.P., ed., new rev. ed., 1998) For a discussion of the role played by John Courtney Murray’s thought in the drafting of Dignitatis Humanae, see JOHN T. NOONAN, JR., THE LUSTRE OF OUR COUNTRY: THE AMERICAN EXPERIENCE OF RELIGIOUS FREEDOM 329-53 (1998)
must recognize and guarantee. First among these rights is the inviolable right to life of every innocent human being Citing St. Thomas Aquinas, the Pope acknowledges that the public authority may sometimes choose not to use the law to stop a practice if its prohibition would cause more serious harm. But, this limiting principle can never be invoked to legitimize as an individual legal right an offense against other persons caused by disregard of the fundamental right to life 3U Thus It]he legal toleration of abortion or of euthanasia can in no way claim to be based on respect for the conscience of others, precisely because society has the right and duty to protect itself against the abuses which can occur in the name of conscience and under the pretext of freedom The legal toleration of abortion or euthanasia is, therefore, a violation of a fundamental human right, which runs directly contrary to the state's primary duty of safeguarding human rights. The Pope here relies on John XXIII's discussion of human rights in the encyclical Pacem in Terris. The common good is best safeguarded when personal rights and duties are guaranteed. The chief concern of civil authorities, therefore, must be to ensure that these rights are recognized, respected, coordinated, defended, and promoted In fact to safeguard the inviolable rights of the human person and to facilitate the performance of his duties is the principal duty of every public authority. Thus any government which refused to recognize human rights or acted in violation of them would not only fail in its duty; its decrees would be wholly lacking in binding force The Pope next situates the doctrine of the necessary conformity of the civil law with the moral law within the tradition of the church. Pacem in Terris again provides the relevant precedent Authority is a postulate of the moral order and derives from God. Consequently, laws and decrees enacted in contravention of the moral order. and hence of the divine will can 2 EVANGELIUM VITAE, supra note 4, 1 71(emphasis added See id, citing St. Thomas Aquinas, SUMMA THEOLOGIAE I-Il, q 96, a. 2. See ST. THOMA AQUINAS, TREATISE IN LAW 92 (Regnery Gateway ed, 1979)(The purpose of human law is to lead men to virtue, not suddenly but gradually. Wherefore it does not lay upon the multitude of imperfect men th burdens of those who are already virtuous, viz., that they should abstain from all evil. Otherwise these imperfect ones, being unable to bear such precepts, would break out into still greater evils", if the precepts of a perfect life are poured into imperfect men, "the precepts are despised, and those men, from contempt break out into evils worse still See EvANGELIUM VITAe, supra note 4,171 See id, citing Dignitatis Humanae (7("[C]ivil society has the right to protect itself against possible abuses committed in the name of religious freedom "when those abuses threaten that part of the common good that is called "public order. Id (quoting PACEM IN TERRIS 160-61(the internal quotation is from Pius Xll, radio message of Pentecost 1941(June 1, 1941))
5 must recognize and guarantee.”28 First among these rights is the inviolable right to life of every innocent human being. Citing St. Thomas Aquinas, the Pope acknowledges that the public authority may sometimes choose not to use the law to stop a practice if its prohibition would cause more serious harm.29 But, this limiting principle can never be invoked to legitimize as an individual legal right an offense against other persons caused by disregard of the fundamental right to life.30 Thus: [t]he legal toleration of abortion or of euthanasia can in no way claim to be based on respect for the conscience of others, precisely because society has the right and duty to protect itself against the abuses which can occur in the name of conscience and under the pretext of freedom. 31 The legal toleration of abortion or euthanasia is, therefore, a violation of a fundamental human right, which runs directly contrary to the state’s primary duty of safeguarding human rights. The Pope here relies on John XXIII’s discussion of human rights in the encyclical Pacem in Terris. The common good is best safeguarded when personal rights and duties are guaranteed. The chief concern of civil authorities, therefore, must be to ensure that these rights are recognized, respected, coordinated, defended, and promoted. In fact, ‘to safeguard the inviolable rights of the human person and to facilitate the performance of his duties is the principal duty of every public authority.’ Thus any government which refused to recognize human rights or acted in violation of them would not only fail in its duty; its decrees would be wholly lacking in binding force. 32 The Pope next situates the doctrine of the necessary conformity of the civil law with the moral law within the tradition of the church. Pacem in Terris again provides the relevant precedent: Authority is a postulate of the moral order and derives from God. Consequently, laws and decrees enacted in contravention of the moral order, and hence of the divine will, can 28 EVANGELIUM VITAE, supra note 4, ¶ 71 (emphasis added). 29 See id., citing St. Thomas Aquinas, SUMMA THEOLOGIAE I-II, q. 96, a. 2. See ST. THOMAS AQUINAS, TREATISE IN LAW 92 (Regnery Gateway ed., 1979) (“The purpose of human law is to lead men to virtue, not suddenly but gradually. Wherefore it does not lay upon the multitude of imperfect men the burdens of those who are already virtuous, viz., that they should abstain from all evil. Otherwise these imperfect ones, being unable to bear such precepts, would break out into still greater evils”; if the precepts of a perfect life are poured into imperfect men, “the precepts are despised, and those men, from contempt, break out into evils worse still.”). 30 See EVANGELIUM VITAE, supra note 4, ¶ 71. 31 See id., citing Dignitatis Humanae ¶ 7 (“[C]ivil society has the right to protect itself against possible abuses committed in the name of religious freedom” when those abuses threaten that part of the common good that is called “public order.”). 32 Id. (quoting PACEM IN TERRIS ¶ 60-61 (the internal quotation is from Pius XII, radio message of Pentecost 1941 (June 1, 1941)))
have no binding force in conscience. .. indeed, the passing of such laws undermines the very nature of authority and results in shameful abuse Pacem in Terris here is relying on the authority of both Scripture and St. Thomas Since the right to command is required by the moral order and has its source in God, it follows that, if civil authorities pass laws or command anything opposed to the moral order and consequently contrary to the will of God, neither the laws made nor the authorization granted can be binding on the consciences of the citizens, since"God has more right to be obeyed than men Human law has the true nature of law only in so far as it corresponds to right reason, and in this respect it is evident that it is derived from the eternal law. In so far as it falls short of right reason, a law is said to be a wicked unjust]law; and so, lacking the true nature of law it is rather a kind of violence. John Paul ll concludes his discussion of the church's understanding of the doctrine of the conformity between the civil law and the moral law with another quote from Thomas who himself was borrowing from Augustine: [elvery law made by man can be called a law insofar as it derives from the natural law. But if it is somehow opposed to the natural law, then it is not really a law but rather a corruption of law. 36 The Pope then applies this doctrine to laws authorizing and promoting abort and euthanasia. Because such laws disregard the fundamental right to life-the source of all other rights-they are radically opposed both to the good of the individual and the common good, which it is the duty of the public authority to safeguard As such [these laws] are completely lacking in authentic juridical validity. Disregard for the right to life, precisely because it leads to the killing of the person whom society exists to serve, is what most directly conflicts with the possibility of achieving the common good. Consequently, a civil law authorizing abortion or euthanasia ceases by that very fact to be a true, morally binding civil law Abortion and euthanasia are in fact crimes that no human law can legitimize Because these acts are intrinsically unjust, laws permitting abortion or euthanasia can neither be licitly obeyed nor supported or voted for. " [A] law which violates an innocent person's natural right to life is unjust and, as such, is not valid as law. 8"There is ld.172 (quoting PACEM IN TERRIS 51) 34 Id(quoting Acts 5: 29) SUMMA THEOLOGIAE, I-ll, q. 93, a. 3, ad. 2. Pacem in Terris also cites Radio Message of Pius Xll, Christmas Eve, 1944, Acta Apostolica Sedis XXXVll, 1945, pp 5-23 EVANGELIUM VITAE, supra note 4,172( quoting SUMMA THEOLOGIAE, I-I, q. 95, a 2, c) Thomas is here quoting Augustine, De Libero Arbitrio 1, 5, 11(Non videtur esse lex, quae iusta non 37 See EVANGELIUM VITAE, supra note 4,172 ld at190
6 have no binding force in conscience . . . ; indeed, the passing of such laws undermines the very nature of authority and results in shameful abuse. 33 Pacem in Terris here is relying on the authority of both Scripture and St. Thomas: Since the right to command is required by the moral order and has its source in God, it follows that, if civil authorities pass laws or command anything opposed to the moral order and consequently contrary to the will of God, neither the laws made nor the authorization granted can be binding on the consciences of the citizens, since “God has more right to be obeyed than men.”34 Human law has the true nature of law only in so far as it corresponds to right reason, and in this respect it is evident that it is derived from the eternal law. In so far as it falls short of right reason, a law is said to be a wicked [unjust] law; and so, lacking the true nature of law, it is rather a kind of violence. 35 John Paul II concludes his discussion of the church’s understanding of the doctrine of the conformity between the civil law and the moral law with another quote from Thomas, who himself was borrowing from Augustine: “[e]very law made by man can be called a law insofar as it derives from the natural law. But if it is somehow opposed to the natural law, then it is not really a law but rather a corruption of law.”36 The Pope then applies this doctrine to laws authorizing and promoting abortion and euthanasia. Because such laws disregard the fundamental right to life – the source of all other rights – they are radically opposed both to the good of the individual and the common good, which it is the duty of the public authority to safeguard: As such [these laws] are completely lacking in authentic juridical validity. Disregard for the right to life, precisely because it leads to the killing of the person whom society exists to serve, is what most directly conflicts with the possibility of achieving the common good. Consequently, a civil law authorizing abortion or euthanasia ceases by that very fact to be a true, morally binding civil law. 37 Abortion and euthanasia are, in fact, crimes that no human law can legitimize. Because these acts are intrinsically unjust, laws permitting abortion or euthanasia can neither be licitly obeyed nor supported or voted for. “[A] law which violates an innocent person’s natural right to life is unjust and, as such, is not valid as law.”38 “There is no 33 Id. ¶ 72 (quoting PACEM IN TERRIS ¶ 51). 34 Id. (quoting Acts 5:29). 35 SUMMA THEOLOGIAE, I-II, q. 93, a. 3, ad. 2. Pacem in Terris also cites Radio Message of Pius XII, Christmas Eve, 1944, Acta Apostolica Sedis XXXVII, 1945, pp. 5-23. 36 EVANGELIUM VITAE, supra note 4, ¶ 72 (quoting SUMMA THEOLOGIAE, I-II, q. 95, a. 2, c). Thomas is here quoting Augustine, De Libero Arbitrio I, 5, 11 (“Non videtur esse lex, quae iusta non fuerit.”). 37 See EVANGELIUM VITAE, supra note 4, ¶ 72. 38 Id. at ¶ 90
obligation in conscience to obey such laws; instead, there is a grave and clear obligat to oppose them by conscientious objection A conscientious legislator could however. vote in favor of a more restrictive abortion law, in place of a more permissive one already in force Then it is not possible to overturn or completely abrogate a pro-abortion law, an elected official whose absolute personal opposition to procured abortion was well known could licitly support proposals aimed at limiting the harm done by such a law and at lessening its negative consequences at the level of general opinion and public morality This does not in fact represent an illicit cooperation with an unjust law, but rather a legitimate and proper attempt to limit its evil aspects.40 The task of the legislator thus involves a complex and morally precarious balancing act. Without falling into an illicit cooperation with evil, the Pope calls on civil leaders to "make courageous choices in support of life, especially through legislative measures. Those who have a legislative or decision-making mandate. also have a responsibility "to answer to God, to his or her conscience and to the whole of society for choices which may be contrary to the common good. While the Pope recognizes that sometimes decisive role in influencing patterns of thought and behavior portant and laws are not the only means available to protect life, they do play a very in Legislators. therefore have a two-fold task. In the face of the difficulties hindering an effective legal defense of life in pluralistic democracies, they must work to remove unjust laws that, "by disregarding the dignity of the human person, undermine the very fabric of society. At the same time, they must work to eliminate the underlying social causes of attacks on life, as they seek to do what is"realistically attainable " in pursuit of the"re-establishment of a just order"in defense of life civil law and the moral law in a February 2000 address commemorating memibveen the The Pope reiterated his commitment to this vision of the relationship be anniversary of Evangelium vitae. After noting that he considers this encyclical"central to the whole magisterium of [his]pontificate, the Pope criticized the"type of defeatist mentality" that claims that laws opposed to the right to life- those which legalize 39 Id at 73 ld. The Pope goes on in paragraph 74 to recall the general principles concerning cooperation in evil actions M. Cathleen Kaveny, The Limits of Ordinary Virtue: The Limits of the Criminal La in Implementing Evangelium Vitae, in CHOOSING LIFE, supra note 7, at 133. [hereinafter The Limits of Iry Virtue] Id (quoting EvANGELIum vitae 9 See id supra note 41,190 ld See John Paul Il, Civil Law, Morality and the Right to life, Address of Pope John Paul ll at the Commemoration of the Fifth Anniversary of the Encyclical Evangelium vitae(Feb 14, 2000). in 45 THE POPE SPEAKS 271-73(Sept.-Oct. 2000)[hereinafter Civil LaI
7 obligation in conscience to obey such laws; instead, there is a grave and clear obligation to oppose them by conscientious objection.”39 A conscientious legislator could, however, vote in favor of a more restrictive abortion law, in place of a more permissive one already in force: [W]hen it is not possible to overturn or completely abrogate a pro-abortion law, an elected official whose absolute personal opposition to procured abortion was well known could licitly support proposals aimed at limiting the harm done by such a law and at lessening its negative consequences at the level of general opinion and public morality. This does not in fact represent an illicit cooperation with an unjust law, but rather a legitimate and proper attempt to limit its evil aspects. 40 The task of the legislator thus “involves a complex and morally precarious balancing act.”41 Without falling into an illicit cooperation with evil, the Pope calls on civil leaders to “make courageous choices in support of life, especially through legislative measures.”42 Those who have a legislative or decision-making mandate, also have a responsibility “to answer to God, to his or her conscience and to the whole of society for choices which may be contrary to the common good.”43 While the Pope recognizes that laws are not the only means available to protect life, “they do play a very important and sometimes decisive role in influencing patterns of thought and behavior.”44 Legislators, therefore, have a two-fold task. In the face of the difficulties hindering an effective legal defense of life in pluralistic democracies, they must work to remove unjust laws that, “by disregarding the dignity of the human person, undermine the very fabric of society.”45 At the same time, they must work to eliminate the underlying social causes of attacks on life, as they seek to do what is “realistically attainable” in pursuit of the “re-establishment of a just order” in defense of life.46 The Pope reiterated his commitment to this vision of the relationship between the civil law and the moral law in a February 2000 address commemorating the fifth anniversary of Evangelium Vitae. 47 After noting that he considers this encyclical “central to the whole magisterium of [his] pontificate,” the Pope criticized the “type of defeatist mentality” that “claims that laws opposed to the right to life – those which legalize 39 Id. at ¶ 73. 40 Id. The Pope goes on in paragraph 74 to recall the general principles concerning cooperation in evil actions. 41 M. Cathleen Kaveny, The Limits of Ordinary Virtue: The Limits of the Criminal Law in Implementing Evangelium Vitae, in CHOOSING LIFE, supra note 7, at 133. [hereinafter The Limits of Ordinary Virtue]. 42 Id. (quoting EVANGELIUM VITAE ¶ 90). 43 See id. supra note 41, ¶ 90. 44 Id. 45 Id. 46 Id. 47 See John Paul II, Civil Law, Morality and the Right to Life, Address of Pope John Paul II at the Commemoration of the Fifth Anniversary of the Encyclical Evangelium Vitae (Feb. 14, 2000), in 45 THE POPE SPEAKS 271-73 (Sept.-Oct. 2000) [hereinafter Civil Law]
abortion, euthanasia, sterilization and methods of family planning opposed to life and the dignity of marriage- are inevitable and now almost a social necessity In the face of this defeatist mentality, the Pope argues that the chapters of Evangelium Vitae addressing the relationship between the civil law and the moral law deserve great attention because of the growing importance they are destined to have in the restoration of social life Pastors, the faithful and people of goodwill, especially if they are lawmakers, are asked for a renewed and united commitment to change unjust laws that legitimize or tolerate such violence. No effort should be spared to eliminate legalized crime or at least to limit the damage caused by these laws Returning to a theme he highlighted in Evangelium Vitae itself, the Pope also recognizes that building a new culture of life requires affirmative pastoral and educational efforts, not simply legal prohibitions of activities opposed to the right to life An authentic apostolate of life requires catechesis and conscience formation, as wel the provision of services that will enable anyone in trouble to find the necessary help These activities cannot be separated from legal change The changing of laws must be preceded and accompanied by the changing of mentalities and morals on a vast scale, in an extensive and visible way. In this area the Church will spare no effort nor can she accept negligence or guilty silence Thus, the Pope makes an appeal to the whole church to become engaged in the apostolate of life "to scientists and doctors to teachers and families. as well as to those who work in the media, and especially to jurists and lawmakers Summary of the Jurisprudential Vision of John Paul Il The Pope's call for a recovery of the basic elements of a vision of the relationship between the civil law and the moral law is rooted in his sense that legal attacks on life flow from an ethical relativism pervading much of contemporary culture. This relativism leads to an idolization of democracy divorced from a conviction that the moral value of 48lat271-72 49 1d. at 272-73(emphasis added) See EvANGLEIuM VITAe, supra note 4,190 It is not enough to remove unjust laws. The underlying causes of attacks on life have to be eliminated, especially by ensuring proper support for families and motherhood. A family policy must be the basis and driving force of all social policies. For this reason there must be set in place social and political initiatives capable of guaranteeing conditions of true freedom of choice in matters of parenthood. It is also necessary to rethink labor, urban, residential and social service policies so as to harmonize working schedules with time available for the family, so that it becomes possible to take care of children and the elderly o2 John Paul Il, Civil Law, supra note 47, at 273(emphasis added)
8 abortion, euthanasia, sterilization and methods of family planning opposed to life and the dignity of marriage – are inevitable and now almost a social necessity.”48 In the face of this defeatist mentality, the Pope argues that the chapters of Evangelium Vitae addressing the relationship between the civil law and the moral law “deserve great attention because of the growing importance they are destined to have in the restoration of social life”: Pastors, the faithful and people of goodwill, especially if they are lawmakers, are asked for a renewed and united commitment to change unjust laws that legitimize or tolerate such violence. No effort should be spared to eliminate legalized crime or at least to limit the damage caused by these laws . . . .49 Returning to a theme he highlighted in Evangelium Vitae itself,50 the Pope also recognizes that building a new culture of life requires affirmative pastoral and educational efforts, not simply legal prohibitions of activities opposed to the right to life. An authentic apostolate of life requires catechesis and conscience formation, as well as the provision of services that will enable anyone in trouble to find the necessary help.51 These activities cannot be separated from legal change: The changing of laws must be preceded and accompanied by the changing of mentalities and morals on a vast scale, in an extensive and visible way. In this area the Church will spare no effort nor can she accept negligence or guilty silence. 52 Thus, the Pope makes an appeal to the whole church to become engaged in the apostolate of life: “to scientists and doctors, to teachers and families, as well as to those who work in the media, and especially to jurists and lawmakers.”53 Summary of the Jurisprudential Vision of John Paul II The Pope’s call for a recovery of the basic elements of a vision of the relationship between the civil law and the moral law is rooted in his sense that legal attacks on life flow from an ethical relativism pervading much of contemporary culture. This relativism leads to an idolization of democracy divorced from a conviction that the moral value of 48 Id. at 271-72. 49 Id. at 272-73 (emphasis added). 50 See EVANGLEIUM VITAE, supra note 4, ¶ 90: [I]t is not enough to remove unjust laws. The underlying causes of attacks on life have to be eliminated, especially by ensuring proper support for families and motherhood. A family policy must be the basis and driving force of all social policies. For this reason there must be set in place social and political initiatives capable of guaranteeing conditions of true freedom of choice in matters of parenthood. It is also necessary to rethink labor, urban, residential and social service policies so as to harmonize working schedules with time available for the family, so that it becomes possible to take care of children and the elderly. 51 See id. ¶ 88. 52 John Paul II, Civil Law, supra note 47, at 273 (emphasis added). 53 Id
democracy depends on the morality of the ends it pursues and the means chosen to pursue hose ends The objective moral law -the natural law written on every human heart-must serve as the obligatory point of reference for civil law itself. This objective moral law serves fundamentally to articulate essential values that flow from the very truth of human being and that express and safeguard the dignity of every human person. The civil law serves a limited purpose in relationship to this moral law -it ensures the common good through the recognition and defense of fundamental human rights and the promotion of ordered social existence in peace and true justice First among the fundamental human rights that positive civil law must recognize, respect, guarantee, and promote is the inviolable right to life of every innocent human being. The legal toleration of abortion or euthanasia is therefore an abdication of the state's primary duty to safeguard human rights through law. Civil laws that contravene the moral order are unjust, conflict with the possibility of achieving the common good, lack the true nature of law, and have no binding force in conscience. Consequently, a civil law authorizing abortion or euthanasia ceases by that very fact to be a true, morally binding civil law Lawmakers have a duty in conscience to work to remove such unjust laws, or at ast to strive to restrict such practices through less permissive laws than those currently in force. While doing whatever is reasonably attainable in pursuit of the re- establishment of a just order in defense of life, lawmakers must, at the same time, work to enact social policies that will help to eliminate the underlying causes of attacks on life relationship between the moral law and the civil law in a religiously pluralistic sociep b Clearly, a number of significant and interrelated questions must be taken seriousl by anyone seeking to heed the Pope s call to recover the basic elements of a vision of the 1. What can we reasonably expect the civil law to do in the absence of moral consensus in a pluralistic society? 4 Does law shape culture or does culture shape law ?55 See McCormick, supra note 8, at 10-17. In the face of moral dissensus regarding the moral status of the fetus, for example, McCormick notes that"public policy will remain sharply contentious and the task of legislators correspondingly complex. Indeed a strong case can be made that the attempt to solve the.,. problem [of divergent evaluations of the status of the fetus] by legislation bypasses our duty to persuade, to change hearts and minds. ld. at 13 See David Hollenbach, S.J., The Gospel of life and the Culture of Death: A Response to John Conley, in CHOOSING LIFE, supra note 8, at 37-45. Hollenbach concludes that the law "must generally follow the cultural consensus rather than lead or form it. He holds this view not out of skepticism or sullen tolerance, which he sees as deadly characteristics of our public philosophy and culture that he joins the Pope in criticizing. Instead, his conclusion flows from a"hope that the route of education and ikely to improve the moral quality of our culture than is a premature reach for law, which remains coercive even when it intends to be educative. Americans are likely to be suspicious of the ntrusion of the coercive arm of the state into areas where they experience moral uncertainty. Such suspicion is not likely to result in conversion of the culture. ld. at 43-44. C. John Paul ll, Civil La, supra note 47, at 273 (stating that vast change in"mentalities and morals"must"precede[ and accompany] ange
9 democracy depends on the morality of the ends it pursues and the means chosen to pursue those ends. The objective moral law – the natural law written on every human heart – must serve as the obligatory point of reference for civil law itself. This objective moral law serves fundamentally to articulate essential values that flow from the very truth of human being and that express and safeguard the dignity of every human person. The civil law serves a limited purpose in relationship to this moral law – it ensures the common good through the recognition and defense of fundamental human rights and the promotion of ordered social existence in peace and true justice. First among the fundamental human rights that positive civil law must recognize, respect, guarantee, and promote is the inviolable right to life of every innocent human being. The legal toleration of abortion or euthanasia is therefore an abdication of the state’s primary duty to safeguard human rights through law. Civil laws that contravene the moral order are unjust, conflict with the possibility of achieving the common good, lack the true nature of law, and have no binding force in conscience. Consequently, a civil law authorizing abortion or euthanasia ceases by that very fact to be a true, morally binding civil law. Lawmakers have a duty in conscience to work to remove such unjust laws, or at the very least to strive to restrict such practices through less permissive laws than those currently in force. While doing whatever is reasonably attainable in pursuit of the reestablishment of a just order in defense of life, lawmakers must, at the same time, work to enact social policies that will help to eliminate the underlying causes of attacks on life. Clearly, a number of significant and interrelated questions must be taken seriously by anyone seeking to heed the Pope’s call to recover the basic elements of a vision of the relationship between the moral law and the civil law in a religiously pluralistic society: 1. What can we reasonably expect the civil law to do in the absence of moral consensus in a pluralistic society?54 Does law shape culture or does culture shape law?55 54 See McCormick, supra note 8, at 10-17. In the face of moral dissensus regarding the moral status of the fetus, for example, McCormick notes that “public policy will remain sharply contentious and the task of legislators correspondingly complex. Indeed a strong case can be made that the attempt to solve the . . . problem [of divergent evaluations of the status of the fetus] by legislation bypasses our duty to persuade, to change hearts and minds.” Id. at 13. 55 See David Hollenbach, S.J., The Gospel of Life and the Culture of Death: A Response to John Conley, in CHOOSING LIFE, supra note 8, at 37-45. Hollenbach concludes that the law “must generally follow the cultural consensus rather than lead or form it.” He holds this view not out of skepticism or “sullen tolerance,” which he sees as deadly characteristics of our public philosophy and culture that he joins the Pope in criticizing. Instead, his conclusion flows from a “hope that the route of education and persuasion is more likely to improve the moral quality of our culture than is a premature reach for law, which remains coercive even when it intends to be educative.” Americans are likely to be suspicious of the intrusion of the coercive arm of the state into areas where they experience moral uncertainty. Such suspicion is not likely to result in conversion of the culture. Id. at 43-44. Cf. John Paul II, Civil Law, supra note 47, at 273 (stating that vast change in “mentalities and morals” must “precede[ ] and accompan[y]” legal change)