|Dr Brian Lewis is one of Australia’s
most eminent moral theologians.
He is a graduate of the Angelicum and the Alphonsian Academy in Rome
and formerly lectured in moral theology in Ballarat and Melbourne.
Prior to retirement he taught scripture, theology and ethics on campuses of the present Australian Catholic University.
He has contributed articles to many journals and reviews.
Perspectives - The articles at
this link are part of an ongoing series written by Dr Brian Lewis which
explores understandings of conscience and morality in the Christian
tradition. Deeper insights into the Scriptures and church traditions open
up new possibilities in ecumenical and philosophical thinking in the
search for a more comprehensive moral worldview.
Brian's previous articles
June 18, 2012 Brian Lewis, Ballarat, Australia
THE ROLE OF THE POLITICIAN
REGARDING PERMISSIVE LEGISLATION
first answer looks at the issue from the standpoint of law. Since civil law,
it says, derives from the natural law by expressing it in practical
applications or further determining it
in concrete situations, politicians must be guided by the natural moral law
and may not support legislation that is against it. State laws ought to direct
citizens to do what natural law dictates, not permit conduct that contradicts
it. This line of thiking is followed by the 1974 Declaration
on Abortion of the CDF, which states, that not only is abortion morally
wrong, but to promote legislation that allows it is also morally wrong. Hence,
according to this view, Catholic politicians have a clear and grave obligation
to oppose such legislation (n.22). In his 1995 encyclical letter Evangelium Vitae Pope John Paul II also says that legislation
allowing such crimes as abortion and euthanasia is unjust and therefore
invalid because it contradicts the moral law requiring respect for human life
in all its stages (nn.70.5 and 72.1).
second answer bases the interrelation between human law and morality on the
principle of the 'free society' set forth in the Declaration
of Religious Freedom – 'as much freedom as possible, as little
restriction as necessary'. According
to this document, the right to
religious freedom derives from 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 earlier been pointed
out, 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 welfare 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.
on this teaching, moral theologians argue that 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 endorse the moral law but to safeguard public
order. Only if it is established that public order requires it, is the
government, Federal or State, entitled to restrict individual freedom by
legislation. According to Irish moral theologian Vincent MacNamara, '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'. Cautious endorsement of this approach is
given in a 2004
both approaches to the interaction between morality and civil legislation are
officially endorsed and evident in Catholic practice, the first approach may
be seen as less well suited to a genuine democratic society. Catholic
polticians adopting this view are confronted with the challenge to bring civil
law into line with Catholic moral teaching.
second approach sees the role of the politician in exercising civil authority
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 will of the majority of their constituents. The
politicians role is complicated by the fact that most politicians belong to a
political party, whose policies may conflict with their own beliefs and their
personal moral conscience. The point to be made is that the responsibility of
the politician is not to seek to impose his or her own religious views or
personal convictions on the community but to ensure that any restriction of
their constituents' freedom is required by the demands of public order.
difficulty of legislating in moral matters is complicated in a society such as
are not called upon to vote upon the morality
of abortion, embryonic stem cell experimentation, nuclear armament or
euthanasia. It seems fair to suggest, in the light of the second approach,
that the responsibility of the politician in conscience is to determine
whether legislation sanctioning such issues is required to protect the rights
of the persons involved and will not infringe upon the rights of other members
of society. 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. In the case of same-sex unions a
political decision should be based on evidence (or the lack thereof) that
legal recognition by the Federal government of permanent commitment between
loving couples will enhance their human dignity and respect their rights.
is worth noting that the majority of theologians concede that from a pragmatic
standpoint civil legislation must be not only equitable but also 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 could still argue that the law
allowing abortion in certain circumstances 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.
conclusion, in a truly democratic society, where a large proportion 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. To cite Vincent
MacNamara again, 'It can not 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'.