June 4, 2012             Brian Lewis, Ballarat, Australia      
                      
WHY WE NEED MAN-MADE LAWS

Australians are generally regarded as a law-abiding people, an assessment made perhaps without taking sufficient account of our bulging gaols, the increasing crime rate in our cities and something we commonly observe, blatant infringements of traffic laws like speeding, runnning red lights and drivers using mobile phones.

The provocative adage of St. Augustine, 'Love and do what you will', makes the point that if we were truly loving people we would not need any laws to guide us and ensure that we are on the right track. How many of us can claim this sort of love? The great medieval theologian and saint, Thomas Aquinas, has the wry comment that if we were all perfect we would not need positive man-made laws. Not being perfect for the most part, however, we need the discipline of coercive laws for the good of society, that is, laws that demand obedience and may carry sanctions for non-observance. His idea seems to be that practice in doing the right thing will gradually lead even immature people to come to appreciate what is good and to seek moral values, not because of any law, but for their own sake, in other words, become virtuous persons.

Well formulated human laws do indeed enshrine certain values and challenge us to realise them in our world. They are enacted to protect values like life, property, health, good name and all those rights that humans have learnt from long experience are indispensable to life in community. It can be said that a law that is not based on a value and does not direct us to a worthwhile action has no binding force. So human laws put us in touch with the wisdom of the ages. They furnish us with tried and tested guidelines for living together and we should respect and obey them.

The reality is that coercive legislation is necessary and important if people are to coexist in harmony and security. The social dimension of human persons is the fundamental reason why we have laws in society, and it is the fundamental context for understanding and appreciating them. Well-made enforceable laws are therefore indispensable for the smooth functioning of any human community. Only if we are informed about the purpose of civil legislation are we in a position to understand how law relates to morality and the role of politicians and others in public life, questions that will be addressed in coming weeks.

Vatican II defined the purpose of civil legislation in its 1965 Declaration on Religious Liberty (Dignitatis Humanae). This was the final document of the council and unlike all the earlier ones it was addressed to the whole world. The climax of a long development from medieval times, it was a breakthrough that brought the freshness of a renewal of the tradition. Its basis, against the background of the social nature of the human person, was the principle of 'the free society'. 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 according to their consciences, however within due limits. '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). This clear statement of the principle of freedom in society (as much freedom as possible, as little restraint as necessary) provides the justification for coercive legislation by the state. In a democratic state such as Australia, law therefore has an important but limited role to play. What criterion then should guide a government's action in limiting the exercise of the citizen's right to freedom by coercive legislation?

The criterion cannot be the common good, since the common good would seem to require that human rights be protected, not limited in their exercise. The Declaration replies that the criterion is the public order, a concept warranted in constitutional law, which however does not make much attempt to define it. Every citizen has of course a moral obligation to act responsibly in exercising freedom, but the reason for the state's intervention in curtailing the freedom of its members is not the common good as such, but, as the document argues, a partial aspect of it, namely public order.

Defining public order, the Declaration states that the laws upholding public order are not arbitrary but must be rooted in the moral law. 'These norms arise out of the need for effective safeguard of the rights of all citizens and for the peaceful settlement of conflicts of rights. They flow from the need for an adequate care of public peace, which comes about when men (sic) 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).

The three components of public order then are:

justice, by which all human rights are protected and provision is made for the settlement of conflicts of rights

public peace, not imposed by police action, but as brought about by when justice is upheld

public morality, requiring the enforcement of at least minimum standards of public morality.

Public order, thus understood, is the reason for the existence of the state and the justification of law enforcement. The goal of coercive legislation, therefore, is not to satisfy or impose the religious or personal views of the government but to ensure that any restriction of freedom in the community is required by the demands of public order.

The protection of the rights of all citizens demanded by the justice component of public order thus justifies the criminalising of homicide, paedophilia, criminal libel, armed robbery, acts of terrorism and similar grave violations of human rights. The order of public morality, which seeks to enforce minimal standards for community living, also requires such action. 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.

It is another matter, however, in regard to other requirements of justice, such as demands for the peaceful settlement of conflicts of rights. This often presents problems of great difficulty. 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. The right that some in the community claim for a pregnant woman over her own body and what happens in it conflicts with the right claimed by others of the unborn embryo to life. Social justice must be the yardstick of the right moral decision in such thorny matters. The government has a grave obligation in conscience to ensure that legislation addressing conflicts of rights such as these provides an equitable and just solution insofar as this is possible.

In summary, the goal of public order is the reason why the state is justified in enacting coercive laws in our democratic society and therefore why we are bound to obey them.