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Chapter 11: The Moral Authority of Law

Question D: What distinctions among the laws of civil societies are necessary for moral reflection?

1. Many societies are more or less completely based on common commitments: for example, civil societies, universities, labor unions. Although the authorities in all such societies make “laws” in the sense to be considered here, the laws of communities other than civil societies are usually called by some other name—“bylaws,” “policies,” “rules,” or simply “decisions.” According to the position explained in question B above (and in 10‑E), there is an essential moral similarity between the authoritative decisions of civil societies and those of other communities.

2. These legal obligations are very important. Many of one’s affirmative duties arise from the obligation to obey laws (taking “laws” in the wide sense it has here). Unfortunately, many people today fail to see the moral force of such legal duties. The former awe of public authority has faded, but it has not been replaced by a more intelligent respect (see GS 30).6 This lends added importance to the discussion which follows. Although its focus is on the law of civil society, the implications for the law of other societies can be gathered by analogy.

3. The law of civil society can be divided in various ways.7 Here the division will be from the moral point of view. Without such a division, the various responsibilities of citizens are likely to be confused.

4. Constitutional law articulates the common and accepted plan by which a community exists.8 It indicates common purposes, the locus and structure of authority, and the limits of public authority. Its moral authority toward its members insofar as they are incapable of consent is similar to that of parents toward children. To the extent people ought to consent, however, the constitution establishes a just power to govern them as a community of free men and women. Once the commitment is made, fairness requires that it be upheld. This duty—to uphold the constitution—is especially incumbent upon those who accept positions of trust under it.

5. Civil law provides a public facility for regulating private affairs according to the public purpose of mutual justice and common peace. For instance, the law of contracts and the law of torts (damages) help people make binding agreements to facilitate cooperation and minimize conflict through the settlement of disputes. One must use the facility of civil law when other moral obligations require its use. Fairness normally requires one to cooperate when others initiate the use of this facility. For example, a person who takes family responsibilities seriously might be morally obliged to make a will; those affected by a will normally are required by fairness to cooperate in carrying out its provisions.

6. Criminal law generally marks out certain acts which would be immoral—usually due to serious unfairness—even if they were not illegal. Even wrongful acts which are possible only because of the existence of the society—treason, say, or deliberate tax evasion—would be immoral even if they were not legal crimes. Authority does not create the wrongness of such criminal acts, and they cannot be made morally right by repealing criminal laws.9 Besides specifying criminal acts, criminal law also determines by authoritative decision how the community will react to them; in other words, it determines criminal processes and punishments (see S.t., 1–2, q. 95, a. 2).

A proper understanding of criminal law is important. In this area, a political society is less the maker of norms than their protector. No society can exist unless there is widespread outward compliance with some basic moral norms—for example, those forbidding killing. However, a society can permit the killing of certain classes of its weaker members, such as the unborn and the aged who lack the support of relatives and friends. To introduce such differences in legal protection is unfair. This consideration about fairness—not the sanctity of life as such—points to what is basically objectionable about the legalization of abortion, though not about abortion itself.

Because criminal law generally presupposes the wrongness of the acts with which it deals, the legalization of such acts previously and rightly considered criminal does not alter their moral wrongness. Moreover, the argument that one ought not to try to enforce moral standards by criminal penalties is fallacious. Not every immoral act can be the concern of society, since most immorality is hidden. Moreover, much of it is slight, and even serious immorality may not be directly related to the common good of civil society. Society can concern itself only with more serious wrongs, about which evidence is available, and which interfere with the common purpose of the society, usually by their injustice (see S.t., 1–2, q. 96, a. 2). However, within these limits, morality is precisely what criminal law is concerned with. Those who object to certain criminal laws as impositions of morality really mean that they hold a different moral position and wish to impose it.

7. With respect to the criminal act itself, the moral force of criminal law is chiefly in one’s antecedent responsibility not to do such an act. With respect to criminal process and punishment, one is bound by the same duty of obedience which requires conformity to laws of the type to be discussed next.

8. Law of this last kind is the regulation by statute and ordinance of the common life of the community at large, of some of its more important subgroups, and especially of the government itself and its agencies. Morally, such regulation is like the process and legal sanction for civil and criminal law. Regulatory law directs public policies and programs, the working of security forces, the public control of businesses, public administration, and many other matters of common life, such as the flow of traffic. Some regulatory laws are general—they direct frequently repeated behavior into commonly accepted patterns. Others are single public acts—for example, a declaration of war.

6. See John XXIII, Pacem in terris, 55 AAS (1963) 269–71; The Papal Encyclicals, 270.46–52, for a compact magisterial treatment of the authority of political societies, including its moral foundation by which it comes from God, its ground in and limitation by the common good, and its nonabsolute character.

7. St. Thomas distinguishes two ways in which positive laws are derived from natural law: S.t., 1–2, q. 95, a. 2. Some are derived as conclusions which follow necessarily from principles; others by a specifying choice between open possibilities. Although the close relationship of law to moral norm in certain cases (for example, criminal law) cannot be ignored, this distinction is not used as a principle of organizing the present analysis, because even the most obvious moral requirements for life in society become legal provisions in a particular system only by determination through a specifying choice or choices which establish the legal offense. See Finnis, op. cit., 281–89 and 294–96.

8. At this point one must take a position on the difficult question of the role of consent of the governed in the constitution of civil society. For a more extensive articulation of the view proposed here, see Germain Grisez and Joseph M. Boyle, Jr., Life and Death with Liberty and Justice: A Contribution to the Euthanasia Debate (Notre Dame and London: University of Notre Dame Press, 1979), 25–46. For a different view, see Finnis, op. cit., 245–52. To be realistic, any consent theory must recognize that even insofar as it is just the same government is different things to different people: a quasi-parent to the incompetent, a host to aliens, a moral community defending itself as best it can against immoral members who ought to consent but refuse to do so, and a community of free persons to its members who rightly consent to its constitution and cooperate in the common life it organizes for the sake of liberty and justice for all.

9. In the development of Anglo-American common law, knowledge of what acts are objectively wrong always was presupposed. (For a brief introduction to common law and a helpful bibliography: Peter Stein, “Law, Common,” Dictionary of the History of Ideas, 2:691–96.) The legal development—which proceeded case by case—did not concern what is right and wrong, but only how the community would deal with wrongful acts. Because of its moral foundations, the common law did not punish as crimes acts lacking the conditions for moral imputability—malicious choice and sufficient reflection. However, in criminal codes of many societies one finds prohibitions of certain kinds of acts which, the prohibition apart, would not be immoral. On my analysis, such laws belong to the purely regulative type, treated in question E. Thus, “criminal law” in the present analysis does not mean exactly the same thing as it does in the descriptive language of lawyers, for whom criminal law simply means what is in the criminal code.