June 18, 2012              Brian Lewis, Ballarat, Australia

                        
             THE ROLE OF THE POLITICIAN
 REGARDING PERMISSIVE LEGISLATION

 It is a reasonable question to ask what influence a politician's moral convictions should have in determining matters of law and public policy. In many countries today there is civil law contrary to the moral principles of some at least of its citizens, for example, cloning, embryonic stem cell research, gay and lesbian marriage, abortion, euthanasia. Such permissive legislation may pose a critical conscience problem for Australian politicians who either themselves or whose electorate in significant proportions do not accept the morality of the actions sanctioned in the law. Two answers to this question are current, both of which appear in documents of the Magisterium of the Church.  

The 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).  

The 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.  

Commenting 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 Vatican document, Compendium of Social Doctrine of the Church. Using the example of a law permitting abortion,  the document states that in the situation we are envisaging a politician's vote 'cannot be interpreted as support of an unjust law but only as a contribution to reducing the negative consequences of a legislative provision'. It also reminds Christians that faith does not impose a rigid framework but that people have to 'live in imperfect situations'.  

While 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.  

The 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.  

The difficulty of legislating in moral matters is complicated in a society such as Australia , in which there is a pluralism of belief and practice. It is a fact of modern life that our society is made up of people of a variety of religious traditions who come  from a diversity of cultural backgrounds. Some community members agree with the teaching of the Catholic Church that human life from its inception to its end is sacrosanct and that therefore, not only abortion, but embryonic stem cell research and therapeutic cloning are morally wrong. Many others in the community do not accept this. The human embryo, it is claimed, has not as yet personal status and hence cannot be the subject of human rights. Personhood comes at a later stage of development. A similar lack of consensus exists in regard to gay and lesbian marriage, some strongly opposing this, others (according to recent findings, about 50%), particularly among younger people, seeing no problem with it.  

Politicians 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.  

It 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.  

In 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'.  

                                                                                               Brian Lewis, Ballarat , Australia