Evangelium Vitae 73: The Catholic Lawmaker and the problem of a seriously unjust law

By: Angel Rodriguez Luno
Ordinary Professor of Moral Theology
Pontifical University of the Holy Cross (Rome)

By seriously unjust civil laws we mean laws which substantially injure the goods or rights that belong to the common good of the body politic, for example, fundamental human rights, public order, justice, etc., as well as laws which deprive such goods or rights of their necessary protection. (Civil laws could be unjust for other reasons, which need not be considered here. On the entire topic, the reader can consult Angel Rodriguez Luno, Etica General, 4 ed. [Pamplona: Eunsa, 2001], 271-273). Not only are those laws seriously unjust which allow the state to attack a human right, but also those through which the state fails in its duty to prohibit and punish, in a reasonable and proportionate way, the violation of fundamental human rights by others. It is clear that the law must contain certain penalties in order that the exercise of fundamental rights is in fact a reality in a given state. If the state does not protect fundamental rights from the illegitimate exercise of human freedom, the result will simply be domination by those who are more powerful (cf. on this point P. Haberle, Le liberta fondamentali nello Stato costituzionale [Rome: La Nuova Italia Scientifica 1993], 47). This last situation is the case with laws allowing abortion; these are the principal subject of this paper.

Effecting an unjust law such as one regarding abortion--analogous to giving a gun to someone you know is going to kill someone but is in need of a weapon? Or to deliberately not stopping someone from killing someone else?

Does a legislator need to know an unjust law is unjust in order to be guilty of wrong-doing? It seems so. Such an act it seems would be counter to general justice at the very least, and perhaps to other virtues as well. Imposing his will unjustly on others, through force--does it suffice for him to have awareness of its injustice if he does not will reciprocity? That he will be willing for someone else to legislate in the same way, if he were a subject? A tyrant knows for whose benefit he 'legislates.' (Does he know that he is taking more than he should?)

But what about 'good-intentioned' lawmakers? Can one support a law permitting abortion without knowing that they are hurting the common good? It seems this is possible. But is it likely that legislators do so not knowing that they are taking a human life, or offending justice? What sort of ignorance do they have, vincible or invincible? In the Western world, we are not dealing with people making laws from scratch--they have rejected the laws (and moral traditions) that they've inherited. Have they done so with a good conscience? Without sin? God knows.

(Law seeks to preserve justice.)