OCTOBER 2006
ISSUE 8 - ISSN 1448 - 6326
CIVIL LEGISLATION AND THE CATHOLIC POLITICIAN
BRIAN LEWIS
Abstract
Confusion exists in the minds of many regarding the responsibility of Catholic politicians to stand up for the teachings of their Church when faced in the public arena with controversial moral issues such as abortion and euthanasia. The confusion is understandable given that Catholic moral theology supports two approaches, which both appear in official documents of the Church. One approach tackles the issue from the perspective of law and maintains that civil legislation must not be in contradiction with the natural law. The second approach begins from the quite different starting point of individual freedom and rests on respect for the dignity of the human person. Coercive laws may limit freedom only under certain conditions in order to maintain public order, a notion that the Declaration on Religious Freedom of Vatican II set out to define. Arguing that the problem needs to be seen in the context of a correct understanding of a democracy based on the principle of a free society, the author goes on to analyse the two approaches and arrive at a balanced solution. One is entitled of course to follow either approach, but the article sets out to show that a right understanding of democracy favours the second approach giving a limited role to law in a pluralistic society. This approach challenges Catholics and others in public life to work for a just ordering of society based on genuine human and Christian values by personal example, service to the community and education of public opinion through discussion and rational argument.
It may be true, as former Federal minister Fred Chaney stated not long ago, that ‘principled stands are a lonely business in Canberra’,[1] but it is nevertheless legitimate to ask what influence a politician’s moral convictions should have in determining matters of law and public policy. In many countries today civil law allows choices contrary to the moral principles of some at least of its citizens, for example, cloning, embryonic stem cell research, gay and lesbian marriage, abortion, euthanasia. Such permissive legislation may pose a critical conscience problem for Australian politicians who either themselves or whose electorate in significant proportions do not accept the morality of the actions sanctioned in the law.
On two occasions recently Cardinal Pell has raised the question of the status in the Church of Catholic politicians who persistently support pro-abortion legislation.[2] His position, cautiously expressed, seems to be that such politicians should not identify themselves as Catholics nor present themselves for Communion. Rejecting this view, Frank Purcell, a retired University of La Trobe lecturer in politics, sees it as a travesty of today’s Catholic teaching on the separate roles of Church and State and on the role of conscience in political decision-making. ‘The morality of a Catholic politician’s decision will depend on whether he/she has followed his/her conscience after due reflection on the likely impact of legislation on the human rights of members of the community’.[3]
In point of fact both positions are found in official documents of the magisterium and both have influenced Catholic thinking on the issue. One has only to recall the furore occasioned in the run-up to the last election in the United States by the condemnation by some of the bishops of John Kerry and other politicians whose voting records and public stances supported legal abortion.[4]
Underlying the two positions are different understandings of the function and role of the State, the meaning and goal of coercive law and the responsibility of politicians vis-à-vis civil law and the broader society. It is therefore important to attempt to highlight these differences in order to understand and evaluate the two approaches. But first they need to be understood in the context of the political and social circumstances obtaining in the country.
The Political Context: The Democratic Society
The political system in force will obviously determine the notion of the State, which will differ according as the political system is totalitarian, as in the former U.SS.R. or Nazi Germany, monarchical, as was so often the case in the Middle Ages, theocratic, as in Iran today, or democratic, as it is in Australia. In this country we have no difficulty in accepting that a democratic society is one that is controlled by a constitution that can be changed only by a majority vote, in which the ruling political party is elected by the people and in which the human dignity and fundamental rights of all are protected.[5] It is interesting, however, that the Catholic Church was slow to recognise both democracy and human rights, because they were initially associated with the Enlightenment and individualistic political liberalism. During the last century, in reacting against growing totalitarianism, Catholic teaching began to focus attention on the dignity, freedom and basic rights of the individual person and on the need for democracy. In his encyclical Pacem in Terris, Pope John XXIII stressed, not only political and civil rights, such as freedom of religion, of association and assembly, as political liberalism did, but also social and economic rights, such as the right to food, shelter, clothing, education, medical care and basic social services.[6]
The climax of this development was the clear statement in Vatican II’ s 1965 Declaration on Religious Freedom of the basic principle of the ‘free society’. The principle is a philosophical one in accord with modern thinking and so should have a reasonable prospect of fairly general acceptance. The Declaration deals primarily with religious freedom but, following the lead of US Jesuit John Courtney Murray, one of the principal architects of the document,[7] religious freedom rightly understood involves the notion of the proper role and operation of a limited constitutional state and therefore the exercise of all freedoms. On the basis of their dignity as human persons, people should not be forced to act against their consciences, nor should they be prevented from acting in accordance with their consciences, within due limits. The Declaration says: ‘the usages of society are to be usages of freedom in their full range. These require that the freedom of human beings be respected as far as possible and curtailed only when and insofar as necessary’ (n.7). According to Murray, this statement of the principle of freedom (as much freedom as possible; as little restraint as necessary) may well be seen by secular experts as the most significant sentence in the whole document. It has important origins in the mediaeval tradition of kingship, law and jurisprudence. Pope Pius XII. and more strongly after him. Pope John XXIIII prepared the way, but here the Church’s statement of the principle ‘has an accent of blessed newness – the newness of a renewal of the tradition’.[8]
In line with his personalism and emphasis on human solidarity, Pope John Paul II, in theory and in practice, was a strong supporter of democracy as he understood it and human rights throughout the world. In his encyclicals Centesimus Annus and Solicitudo rei socialis he makes the point that democracy demands that all citizens work together and accept responsibility for the common good. Democracy also ensures that all are empowered to elect and hold accountable their leaders and to replace them peaceably wherever appropriate. On the same bases he recognised both political and civil rights as well as social and economic rights.[9]
Because of his failure to distinguish the role of freedom in the moral order from its role in the political order, Pope Leo XIII was opposed to political and civil rights (on the principle that error has no rights) and as a result he could not have accepted the principle of freedom enunciated by Vatican II. Interestingly Pope John Paul II also failed to state explicitly that freedom is an analogous concept and that freedom in the political order differs from freedom in the moral order. Because he thought that political freedom is tainted by moral relativism, he did not attribute its full significance to political freedom and its function in a democracy. He does not seem to have accepted the notion of political freedom proposed by the afore-mentioned Declaration. At any rate nowhere in his encyclicals is there mention of the basic principle of the free society.[10]
The State in a Democratic Society
In the Catholic tradition the origin of the State lies in the nature of the human person and the purpose of the State is the protection and promotion of the common good. Pope John Paul II further developed the thought of his predecessors Pius XI and John XXIII in elaborating the principle of subsidiarity among the various levels of society and in pointing out the current need in some instances for government intervention. Strangely, however, he did not develop the important distinction made by Vatican II’s Declaration on Religious Freedom between the State and the broader society.
This refinement of the idea of the State made by Vatican II has a significant impact on the interaction between the role of the politician and civil legislation. In a democracy, according to the Declaration, the State with its power of coercive legislation is not to be identified with the broader society, whose end is the common good and in which there is a variety of social, cultural and economic activities that transcend the scope of the State. The Declaration makes the further point that the basic principle of the ‘free society’ requires that in its exercise freedom in society must be subject to certain regulatory norms. The first norm obviously is the moral principle of personal and social responsibility in the community, for in exercising freedom justice and civility demand respect for the rights of others and the fulfilling of one’s duty towards others in the community. More difficult to spell out, the document implies, is the juridical norm that should control the action of government in limiting the exercise of the right to religious freedom (n.7).
In commenting on this passage John Courtney Murray says, ‘the norm cannot be the common welfare, since the common welfare requires that human rights should be protected, not limited in their exercise. Hence the Declaration adopts the concept of public order. Although the concept has good warrant in constitutional law, it is more frequently used than defined. The Declaration undertakes to define it. In doing so, it makes a contribution to the science of law and jurisprudence’.[11] Public order then, is a narrower concept than the common welfare; it is the immediate end of the State and the justification for enforcement by law. But, as Charles Curran notes, only in the context of a democratic society can and should one distinguish between the broader and more inclusive concept of society with the common good as its end and the narrower concept of the state with the more limited end of public order.[12]
Defining public order, the Declaration states that the norms constituting public order are not arbitrary but must be rooted in moral law. ‘These norms arise out of the need for effective safeguard of the rights of all citizens and for peaceful settlement of conflicts of rights. They flow from the need for an adequate care of public peace, which comes about when men live together in good order and in true justice. They come, finally, out of the need for a proper guardianship of public morality. These matters constitute the basic component of the common welfare: they are what is meant by public order’ (n.7). It is worth quoting Murray’s commentary on this statement:
The public order of society is a part of the universal moral order; its requirements must be rooted in the moral law. Public order exhibits a threefold content. First, the order of society is essentially an order of justice, in which the rights of all citizens are effectively safeguarded, and provision is made for peaceful settlement of conflicts of rights. Second, the order of society is a political order, an order of peace…. Public peace, however, is not the result of repressive action by the police. It is, in the classic concept, the work of justice; it comes about, of itself, when the demands of justice are met, and when orderly processes exist for airing and settling grievances. Third, the order of society is a moral order, at least in the sense that certain minimal standards of public morality are enforced at all.
It is interesting that Pope John Paul II in his important encyclical The Gospel of Life (Evangelium Vitae) does not mention the concept of public order. He does refer to the three components of public order – ‘fundamental rights, and the promotion of peace and of public morality’ – but he explicitly says that these three goods constitute the common good.[13] No doubt for this reason he failed to distinguish the State from the wider society. We will return to this point in the following section.
The Relation between Civil Legislation and Morality
The question that concerns us is the extent to which the law of the State can and should intervene in matters of morality such as cloning, embryonic stem cell research or abortion. The controversial nature of the answer to this question was brought out in the field of jurisprudence in the famous debate in the U.K. in the latter half of the 20th century between Professor Hart and Lord Devlin, each protagonist beginning from a different starting point and reaching a different conclusion. At root the issue was a different understanding of the role and function of the State in a democracy.[14] A similar difference of approach is reflected among Roman Catholic theologians and in Church documents.
One approach begins from the standpoint of law. Since civil law derives from the natural law by expressing it in practical conclusions or further determining it in concrete situations, it must at least not be in conflict with the moral law. If it does conflict with the moral law, it ceases to be law at all (St. Augustine) or becomes a corruption of law, a spoilt law or an outrage rather than a law (St. Thomas Aquinas).[15] Political authority must therefore look to the natural law in framing its laws.
This approach was taken by the late Pope John Paul II, a most outspoken champion of the right to life and vocal opponent of laws sanctioning abortion and euthanasia, which he regarded as a reflection of the ‘culture of death’. His stance on this latter issue follows from his failure to accept explicitly the fundamental principle of the free society and his notion of democracy. In his 1995 encyclical Evangelium Vitae (n.68-77), he reiterates the tradition of the Church condemning the direct taking of innocent life, whether in its beginnings (abortion, destruction of human embryos in medical experimentation) or in its final stages (euthanasia), as against the natural moral law. In the light of this he affirms that civil legislation allowing practices such as abortion and euthanasia is unjust and therefore invalid because it contradicts the moral law requiring respect for human life in all its stages (70.5, 72.1). And he adds: ‘The doctrine on the necessary conformity of the civil law with the moral law is in continuity with the whole tradition of the Catholic Church…This is the clear teaching of St. Thomas Aquinas’ (72.1).[16]
The same approach is found in the 1974 Declaration on Abortion of the Congregation for the Doctrine of Faith and its doctrinal note directed in a particular way to Catholic politicians and all members of the faithful called to participate in the political life of democratic societies’.[17] This document states that, not only is abortion morally wrong, but to promote legislation that allows it is also morally wrong. Hence, according to this viewpoint Catholic politicians have a clear and grave obligation to oppose such legislation. Under the same umbrella would come anything seen as against the natural moral law.
The second approach, while it does not in general reject St. Thomas Aquinas’ treatise on law, considers the interrelation between civil law and morality from a quite different perspective. The starting point of this approach is not law at all but the principle of the ‘free society’ set forth in Paragraph 7 of the Declaration on Religious Freedom - ‘As much freedom as possible, as little restriction as necessary’. The right to religious freedom it sees as based on the dignity of the human person and the nature of the search for truth. These are the same whether one is thinking about religion or about morality. From the perspective of the primacy of freedom in society any curtailment of it has to be justified. As has already been shown, the first limit on freedom in society is the responsibility of each person and of society itself in the exercise of freedom. Beyond this the reasonable criterion for the intervention of the State with the power of law is not the common good as such, but, as the document argues, a partial aspect of it, namely public order, which has three elements: justice, public peace and public morality. Only when it is necessary to uphold and protect these three elements of public order is law enforcement justified. In other words, public order demands that the exercise of the fundamental right to freedom of the individuals who comprise the community must be harmonised. This clearly implies some regulation by law.
A recent Vatican document, the Compendium of Social Doctrine of the Church,[18] gives cautious approval to such a decision. Using the example of a law permitting abortion, the document states that in the situation we are envisaging a politician may legitimately support such proposals. His/her vote ‘cannot be interpreted as support of an unjust law but only as a contribution to reducing the negative consequences of a legislative provision’ (par.570). The document also reminds Christians that faith does not impose a rigid framework but that people have ‘to live in imperfect situations’ (par 568). The 1987 Instruction on Bioethics begins its discussion on morality and law with Vatican II’s freedom approach, but nevertheless comes to the same conclusion about the legal regulation of reproductive technology as the Declaration on Abortion does regarding laws on abortion.[19]
While both approaches to the interaction between morality and civil legislation are officially endorsed, the law-centred approach confronts Catholic politicians with the challenge to bring civil law into line with Catholic moral teaching and is less well suited to a genuine democratic society. If, however, the principle of the free society upheld by the Declaration on Religious Freedom is accepted, in a democracy there is a presumption in favour of freedom. In such a society the function of civil law is not in the first instance to enforce the moral law but to safeguard and protect public order. Only if it is established that public order requires it, is the government, whether Federal or State, entitled to restrict individual freedom by coercive legislation. As eminent moral theologian Vincent MacNamara maintains, ‘In issues of law and morality the aim is not to find the morality of a particular piece of behaviour but to find the moral stance to be taken by the State when people hold different positions sincerely”.[20]
The role of the politician as a member of civil authority must then be seen in the context of a democratic state under a constitution, in which the will of the people is the rule of law and in which freedom of conscience is as far as possible upheld. Politicians are elected to represent a wide cross-section of people of many religions, moral convictions or none of either and they are bound to respect the view of the majority of their constituents. The Catholic politician’s role is complicated by the fact that most politicians belong to a political party, whose policies may conflict with the beliefs and teachings of their church and/or personal moral conscience. The same may be true of other Christian and non-Christian politicians. In regard to coercive legislation the point to be made is that the responsibility of the politician is not to seek to impose his/her own religious views or personal convictions on the community but to ensure that any restriction of the freedom of his/her constituents is required by the demands of public order.
This is best seen in particular applications.
Practical Conclusions
1. In many areas coercive laws do in fact seek to reinforce elements of the moral law. However, the reason is not that these elements are further determinations or applications of the natural law but that public order requires that at least certain minimal standards of public morality be enforced. Otherwise basic human rights would be trampled upon and living in community would be rendered impossible. Thus public order justifies the criminalising of homicide, paedophilia, criminal libel, armed robbery, acts of terrorism and similar grave violations of human rights. Public order also justifies laws aiming to keep the peace by controlling excessive noise, legislation putting in place appropriate procedures for settling disputes and grievances, traffic laws, and so on. This kind of legislation is normally accepted without question in the community.
2. The justice requirements of public order, however, are not so easily seen or accepted. Indeed they often present problems of great difficulty. Justice demands provision for the peaceful settlement of conflicts of rights. Social issues of this nature needing resolution are of fairly common occurrence, for example, the recent Industrial Relations legislation involves a conflict between the rights of employers on the one hand and the basic rights of workers to a living wage, collective bargaining and union representation on the other. The rights of Australian society to adequate border protection and the safeguarding of other human rights come up against the basic human rights of Asylum Seekers. Social justice must be the criterion of the right moral decisions in such matters. Politicians have a grave obligation in conscience to ensure that legislation addressing conflict of rights provides an equitable and just solution.
3. Justice also requires that the rights of all citizens are protected and promoted. The difficulty of just legislative intervention in many areas is made more complex in a society such as Australia, in which there is a pluralism of belief and practice. It is a fact of modern life that our society is made up of people of a variety of religious traditions or of none and come from a diversity of cultural backgrounds. Some community members agree with the teaching of the Catholic Church that human life from its inception to its end is sacrosanct and that therefore, not only abortion, but embryonic stem cell research and therapeutic cloning are morally wrong. Many others in the community do not accept this. The human embryo has not as yet personal status and hence cannot be the subject of human rights. Personhood comes at a later stage of development. A similar lack of consensus exists in regard to gay and lesbian marriage, some strongly opposing this, others (according to recent findings,[21] about 50%, particularly among young people) seeing no problem with it.
The politician is not called upon to vote on the morality of abortion, embryonic experimentation or civil union of gays or lesbians. His/her responsibility in conscience is to determine whether legislation sanctioning such behaviour is required in order to protect the rights of the persons involved and will not infringe upon the rights of other members of the community. Politicians are duty bound to inform themselves of all aspects of the issue under consideration and to ensure that their decision is based on objective evidence of justice or injustice. As Purcell says, I believe rightly,
In the case of gays, a political decision should be based on the evidence, or evidence to the contrary, that some recognition of permanent commitment between loving couples will enhance their human dignity. It should also look at any evidence that such recognition will help to reduce the physical abuse and discrimination such people frequently suffer in our society ….. The same principles should operate in the case of legislation on abortion’.[22]
It is worth noting that the majority of theologians concede that from a pragmatic standpoint civil legislation must be, not only equitable, but enforceable. Politicians who would prefer stronger legislation may sometimes have to settle for something less if that is the best that can be expected. Even if one considers the law seeking to regulate abortion in the community and limit recourse to it to be morally wrong, one can still argue that the law allowing abortion in certain situations is a lesser evil, on the ground that to declare it illegal and impose sanctions would not stop it or reduce its incidence but merely drive it underground. In such a situation there is justification for tolerating the lesser evil.[23]
In a truly democratic society, where a large percentage of the population does not see certain forms of behaviour, at least in well defined cases, as morally wrong, politicians may be justified in allowing, even supporting, permissive legislation affording citizens the right to follow their conscience, even if it is erroneous. In such situations public order is best served if people are free to inform their own conscience and to act upon it rather than be forced to conform to the judgment of others. ‘It can hardly be stressed too often that it is entirely compatible for a Catholic to hold that a particular kind of behaviour is immoral but that the state should not criminalise it.’[24]
4. It is very important to recall the distinction made by the Declaration on Religious Freedom between the State with its more limited focus and the broader society directed towards the common good. The Declaration goes on to say that the promotion of the common good – chiefly the protection of the rights and the performance of the duties of the human person – devolves ‘upon the people as a whole, upon social groups, upon government and upon the Church and upon other religious Communities, in virtue of the duty of all towards the common welfare’ (n.6). Indeed the influence of the Church in the field of social justice is primarily in this broader public arena of culture and public opinion, rather than in the narrower area of civil legislation. In his encyclical Deus Caritas Est, Pope Benedict XVI seems to be thinking of Church leaders and officials when he says:
The Church cannot and must not take upon herself the political battle to bring about the most just society possible. She cannot and must not replace the State. Yet at the same time she cannot and must not remain on the sidelines in the fight for justice. She has to play her part through rational argument and she has to reawaken the spiritual energy without which justice, which always demands sacrifice, cannot prevail and prosper. A just society must be the achievement of politics, not of the Church. Yet the promotion of justice through efforts to bring about openness of mind and will to the demands of the common good is something which concerns the Church deeply’ (n. 28).
However, as Curran affirms, under certain conditions both Church leaders and members may be justified in seeking to influence specific laws and public policies, not on religious grounds, but on the basis of public order.[25] Cardinal Pell did this recently in his speech to the National Press Club in Canberra, in which he expressed apprehension about the Industrial Relations legislation before Parliament, emphasising the need to protect low-income earners and even bring about increased union influence. [26]
Concern for good legislation according to the demands of public order, therefore, by no means exhausts the moral responsibility of politicians. Vatican II’s Constitution on the Church in the Modern World gave high praise to politicians who ‘as a service to others, dedicate themselves to the welfare of the State and undertake the burdens of this task’ (Gaudium et Spes, n.25). It is of vital importance for the common good of society that men and women of this quality enter in politics and that, if they are party members, they continue to be active in working to achieve the good results their party stands for. Laws cover a relatively small part of human conduct. In the broader society, social, cultural and economic activities, as well as the arena of public opinion provide many opportunities for the politician to influence attitudes, support genuine Christian values and work constructively for the betterment of society. Pope Benedict again observes in his encyclical:
The direct duty to work for a just ordering of society, on the other hand, is proper to the lay faithful. As citizens of the State, they are called to take part in public life in a personal capacity…. The mission of the lay faithful is therefore to configure social life correctly, respecting its legitimate autonomy and cooperating with other citizens according to their respective competences and fulfilling their own responsibility.[27] Even if the specific expressions of ecclesial charity can never be confused with the activity of the State, it still remains true that charity must animate the entire lives of the lay faithful and therefore also their political activity, lived as ‘social charity’ (n.29).
The challenge is there for the Christian to exercise love, compassion, justice and a preferential option for the poor in taking positive measures to improve conditions in society, and perhaps as an even more urgent responsibility, to remove the negative conditions that cause abuses such as abortion in the community.
