On the Morality of Legislative Compromise: Some Historical Underpinnings

Rev. Maestri William F. , “Abortion in Louisiana: Passion Over Prudence,” The Linacre Quarterly 57, no. 4 (November, 1990): 36.

Rev. Maestri William F. , “Abortion in Louisiana: Passion Over Prudence,” The Linacre Quarterly 57, no. 4 (November, 1990):, 39.

Maestri William F. , “Abortion in Louisiana: Passion Over Prudence,” The Linacre Quarterly 57, no. 4 (November, 1990):, 42. In an earlier article, Maestri had written: “The realization of a human life amendment should not be viewed as an all or nothing strategy. Legislation is a process of prudent compromise.” See Rev. Maestri William F. , “The Abortion Debate After Webster: The Catholic-American Moment,” The Linacre Quarterly 57, no. 1 (February 1990): 53.

See, for example, Most Rev. Hubbard Howard J. , “After ‘Webster’: Bishops and Cahtolic Officeholders,” Origins 19, no. 29 (Dec. 21, 1989): 476. Maestri also used this expression in “The Abortion Debate,” 56. The new problematic created by Webster is explained at length by Philip A. smith, “Abortion: From Roe to Webster,” The Catholic Lawyer 33, no. 3 (1990): 237-260.

Aquinas Thomas St. , Summa Theologiae II-II, q. 50.

II-II, q. 49, a. 3. In the same article, in the reply to the third objection, he added: “Even people in authority ought themselves to be teachable sometimes, for, as we have mentioned, in matters of prudence no one is wholly self-sufficient.”

John Langan S.J. , “Politics — Good, Bad, or Indifferent? A Philosophical Assessment,” in Between God and Caesar, Priests, Sisters and Political Office in the United States, ed. Kolbenschlag M. (New York: Paulist Press, 1985), 133.

Granfield David , The Abortion Decision (N.Y.: Doubleday and Co., Inc., 1969): 198.

This issue is carefully analyzed in Griffin Leslie , “The Problem of Dirty Hands,” Journal of Religious Ethics 17, no. 1 (Spring 1989): 31–61.

See, for example, Niccolo Machiavelli, The Prince, Ch. XVIII.

This kind of compromise has been challenged by many bishops. For example, see Most Rev. McHugh James , “Abortion and the Officeholder” Origins 20, no. 3 (May 31, 1990): 40–42. Cardinal O'Connor recently quoted Pope Leo XIII as follows: “ ‘Further, it is unlawful to follow one line of conduct in private and another in public, respecting privately the authority of the church and publicly rejecting it: For this would amount to joining together good and evil, and to putting man in conflict with himself; whereas, he ought always to be consistent and never in the least point nor in any condition of life to swerve from Christian virtue.’ “See his “Abortion: Questions and Answers” Origins 20, no. 7 (June 28, 1990): 105.

National Conference of Catholic Bishops, “Resolution on Abortion,” Origins 19, no. 24 (Nov. 16, 1989): 395.

According to John H. Schwarz, St. Thomas’ opinion on such a situation was as follows: “The voter may … for a sufficient reason cast his ballot for the less worthy candidate, who still must in no way be unfit for the office. … The reason for choosing the less worthy of the candidates must be proportionate to the loss which the state will suffer by the better candidate failing to be elected.” See Schwarz John H. , “The Moral Obligation of Voting,” The Ecclesiastical Review 105, no. 4 (October 1941): 295.

Griffin Leslie , “The Church, Morality and Public Policy,” in Moral Theology: Challenges for the Future, ed. Curran Charles E. (New York: Paulist Press, 1990): 334–339. The Catholic bishops of Wisconsin said this: “In our pluralistic society, the consistent ethic of life will only be realized through coalitions — and dialogue with others … Participation in coalitions with those who disagree with some Catholic teachings is not a betrayal of the Church when the goals of the coalition advance the value and dignity of life.” See Origins 19, no. 28 (Dec. 14, 1989): 464.

Griffin , “The Church, Morality and Public Policy,” 339.

I, q. 92, a. 1, ad 2.

I-II, q. 105, a. 1. When St. Thomas spoke about political authority, he was not only referring to the supreme authority but to lesser authorities as well. See Rev. Lynam Gerald J. , “The Good Political Ruler According to St. Thomas Aquinas” (Ph.D. diss., The Catholic University of America, 1953), 24.

For a detailed study of these distinctions which draws heavily on the thought of St. Thomas, see Dolan Joseph V. , S.J. , “Natural Law and Modern Jurisprudence,” Laval théologique et philosophique 15 (1959), no, 1: 32–63; “Natural Law and Judicial Funtion.” Laval théologique et philosophique 16 (1960), no. 1: 94-141; and “Natural Law and Legislation,” Laval théologique et philosophique 16 (1960), no. 2: 237-264.

I-II, q. 100, a. 9, resp.

I-II, q. 96, a. 2, resp.

Thomas Gilbey O. P. , The Political Thought of Thomas Aquinas (Chicago: The University of Chicago Press, 1958), 183.

When St. Thomas gave examples of the kinds of evils which law should prohibit, he explicitly included murder. See I-II, q. 96, a. 2, resp. In this vein, Pope John Paul II just wrote, “A true democracy can only be established on the basis of a consistent recognition of the rights of each individual.” See John Paul Pope II , “Letter on Combatting Abortion and Euthanasia,” Origins, vol. 25, no. 8 (July 4, 1991): 136.

d'Entreves A. P. , Natural Law, 2nd Edition (London: Hutchinson University Library, 1970), 79. Also, see Pope John Paul II, ibid., where he insists on the educative function of civil law as affecting public values. Moreover, it should be added that there is no real American consensus in favor of abortion-on-demand. See, for example, the statistics cited in Lynn D. Wardel, “The Road to Moderation: The Significance of Webster for Legislation Restricting Abortion,” Law, Medicine and Health Care 17, no. 4 (Winter 1989): 376-383.

Of course, compromises of the second type may become possible, for example, when the warring factions come to an agreement, presumably for different reasons, that a particular proposed piece of legislation does not qualify as good law.

II-II, q. 49, a. 1, resp.

II-II, q. 50, a. 1 & a. 2.

II-II, q. 49, a. 1.

I-II, q. 96, a. 2, ad 3.

Lynam , 192.

I-II, q. 96, a. 2, ad 2.

I-II, q. 97, a. 4, resp.

I-II, q. 10, a. 8.

The following quotations come from Pope Pius XII, “International Community and Religious Tolerance,” The Pope Speaks, First Quarter, 1954: 67 & 68. See also Pope Leo XIII, “Libertas. Encyclical Letter On the Nature of Human Liberty. June 20, 1888,” in The Papal Encyclicals 1878-1903, ed. Claudia Carlen, IHM (The McGrath Publishing Co., 1981), 178.

The following citations are taken from these works by V. Rev. Francis Connell J. , C.SS.R.: “The Relationship Between Church and State,” The Jurist 13, no. 4 (Oct., 1953): 398-414; Morals in the Professions: a Guide for Catholics in Public Life (Westminster, MD: The Newman Press, 1958); “A Catholic for President” American Ecclesiastical Review 142, no. 4 (April, 1960): 271-273.

Most Rev. Karl Alter J. , “Nineteen Questions about a Catholic President,” Catholic Mind 18, no. 1151 (Sept.-Oct. 1960): 447.

The further implications of this point are not easy to formulate. For example, the legal right supported here might be construed as an immunity which allows one to live according to one's sincere conscience (although the existence of the right might also enable one to try to spread what one wrongly believes to be true). But it seems to be quite a different matter when the right under discussion allows one to cause grave harm to others (even though it also allows one to live according to one's own sincere conscience).

Origins 17, no. 28 (Dec. 24, 1987): 486&487. The first of these two statements received the most attention.

Rev. Place Michael D. , “‘The Many Faces of AIDS: ‘ Some Clarifications of the Recent Debate,” America 158, no. 6 (Feb. 13, 1988): 139.

See, for example, Most Rev. J. Francis Stafford, “A Response to the USCC's AIDS Statement,” International Review of Natural Family Planning 11, no. 4 (Winter, 1987): 313; and Msgr. Murphy William , “The Moral Substance of AIDS Education,” a letter to the editors, America 158, no. 6 (Feb. 13, 1988): 173.

Carlo Caffarra Msgr , “AIDS: General Ethical Aspects,” Dolentium Hominum 13 (1990): 71; and Archbishop Stafford, 113.

Keenan James F. , S.J. , “Prophylactics, Toleration and Cooperation: Contemporary Problems and Traditional Principles,” International Philosophical Quarterly 29, no. 2 (June 1989): 206.

The exact words of Pope Leo XIII were: “In this, human law must endeavor to imitate God, who, as St. Thomas teaches, in allowing evil to exist in the world, ‘neither wills evil to be done, nor wills it not to be done, but wills only to permit it to be done; and this is good.’ This saying of the Angelic Doctor contains briefly the whole doctrine of the permission of evil.” See Pope Leo XIII, “Libertas,” 178. See also Thomas Aquinas St ., On the Truth of the Catholic Faith, Book III: Providence, Part I, Trans. V. Bourke (New York: Doubleday and Co., 1956), 239 & 240.

See the treatment of this in Zalba Marcellinus , Theologiae Moralis Summa, Vol. I, Editio Altera (Madrid: Biblioteca de Autores Cristianos, 1957): 768–770. Zalba's extensive survey of opinions demonstrates that there has been a long-standing debate over the way in which some moralists use the principle of the lesser of two evils. This is, of course, one of the points at issue in today's controversy over “proportionalism.” See, for example, Paul Ramsey and Richard A. McCormick, S.J. (eds.), Doing Evil to Achieve Good (Chicago: Loyola University Press, 1978).

Unsigned editorial, America 157, no. 20 (December 26, 1987): 492.

Sunshine Edward R. , “Toleration of Evil and Avoidance of Scandal: The Shaping of Official Roman Catholic Moral Teaching,” unpublished paper given at the annual meeting of the Society of Christian Ethics in Culver City, CA, Jan. 12, 1990: 8.

See, for example, Zalba , 781–793.

Haering Bernard , C.SS.R., The Law of Christ, vol. II (Westminster, MD: The Newman Press, 1964), 495.

When carried out in the political arena, an act of formal cooperation is practically equivalent to Compromise I. The Most Rev. John J. Myers speaks out strongly against this kind of complicity in his “Obligations of Catholics and Rights of Unborn Children,” Origins 20, no. 5: 65–72.

II-II, q. 62, a. 7, resp. See also his Epistolam ad Romanos in Opera Omnia, XIII (N.Y.: Musurgia Publishers, 1949): 22. It should be noted that St. Thomas does not use the terminology of formal and material cooperation. Moreover, not all instances of positive or direct cooperation are instances of material cooperation.

Zalba , 783, n. 36.

Haering , 499.

In doing so, he considered himself to be at odds with Professor Germain Grisez. See Keenan, 208. For some important background to this disagreement, see Germain Grisez, “A critique of two theological papers,” Homiletic and Pastoral Review, vol. 84 (July 1984): 10-15; McCormick Richard A. , “Medicaid and Abortion,” Theological Studies, vol. 45 (1984): 715–21; and Germain Grisez, “Public funding of abortion: a reply to Richard A. McCormick,” Homiletic and Pastoral Review, vol. 85 (June 1985): 32&49-51.

Schwarz , 292 & 293.

Ryan Rev John A. , and Boland Rev Francis J. , Catholic Principles of Politics, Revised Edition of “The State and the Church (New York: The Macmillan Co., 1950), 204 & 205.

Schwarz, 293. See The National Conference of Catholic Bishops, Pastoral Letters of the United States Catholic Bishops, vol. I: 1792–1940 (Washington, D.C.: USCC, 1984), 133 & 134.

Aleixo José C. , “The Catholic Church and Elections, A Study of the Catholic Thought on the Moral Obligation of Voting.” (Ph.D. diss., Georgetown University, 1968), 49.

Schwarz , 296.

Ryan , and Boland , 205. This recalls the dictum that no one is obliged to do what is useless.

Schwarz , 300.

Rev. Titus Cranny S.A. The Moral Obligation of Voting, (Washington, D.C.: The Catholic University of America, 1952), 90. Aleixo, 91 & 92, explained that elections in communist countries may be of this kind. Some authors added, however, that an abstention in such a case would not be required if “write-ins” were permitted. On this, see Cranny, 93.

Rev. Titus Cranny S.A. The Moral Obligation of Voting, (Washington, D.C.: The Catholic University of America, 1952), 56-58. This qualification is exemplified by the famous “non-expedit” decree of Pius IX, a decree renewed and modified some of his predecessors. See also Msgr, Giuseppe Monti, “Election, Civil,” in Dictionary of Moral Theology, ed. Palazzini Pietro (Westminster, MD: The Newman Press, 1962), 451. This idea may to explain Pope Pius XII's forbidding Italian Catholics to participate in their national election in 1948.

Schwarz, 302. In a justifiable compromise on abortion, the proportionate reason should be that the lives of more unborn children would be saved than under the potential alternative(s).

Schwarz, 302. In a justifiable compromise on abortion, the proportionate reason should be that the lives of more unborn children would be saved than under the potential alternative(s)., 302 and 320. See also Aleixo, 97.

Approaching this matter very cautiously, Bishop Myers has written: “Only in a very limited circumstances will material cooperation be consistent with Christ's command that we do unto others as we would have others do to ourself. Even in such circumstances one must take care not to slip into wrongful material or formal complicity in abortion. If one's employment or office becomes a serious occasion of sin, one's chief responsibility is to find new employment or a different office.” See Myers Bishop , p. 70.

Cardinal O'Connor, 107. To accept such a set of principles is not to say that they are always easy to apply. Moreover, the term “imperfect law” might be construed as a reference to difficulties inherent in the process of legislation itself.

Cardinal O'Connor treats this issue on p. 110 of his statement, it is certainly important not to condemn those pro-life legislators who with a sincere conscience do not accept the kind of complex reasoning offered here.

Maestri, “The Abortion Debate,” 51. Leslie Griffin has also done much to explore these broader issues in the articles cited above and also in her “The Integration of Spiritual and Temporal: Contemporary Roman Catholic Church-State Theory.” Theological Studies. Vol. 48, No. 2 (June 1987): 225–257.