What is the law? When can we ignore it? Part 3: Natural Law

By Dr. Jeff Mirus ( bio - articles - email ) | Mar 13, 2018

The money question in this series on the nature of law is: “When are we morally obliged to disobey a law?” The answer is: “Whenever it commands us to take an action which is morally contrary to the natural law.” As in the preceding two installments, we recognize that such an enactment is not really a law at all, since it is not a precept of reason in accordance with the natural aw, which is the formal cause of all law. Instead, it is an enactment masquerading as a law.

We know this without doubt for all enactments contrary to the natural law. Therefore, if an enactment commands us to do something that violates the morality imposed upon us by the natural law, then we are obliged to disobey. Even in so clear and obvious an instance, however, we must consider the various kinds of things a morally bad law might demand in order to distinguish which sorts of demands entail sin for those who comply.

Irrelevant Objections

Before proceeding to legitimate concerns about the natural law, perhaps I should call attention to the human propensity to raise objections to laws and policies, in the name of absolute morality, which are nothing to the purpose. This is done on all sides. Readers of CatholicCulture.org will be very familiar with the constant invention of alleged rights by those outside the fold, and with the corresponding claims that this or that law is absolutely immoral because it violates one of these rights.

But since our readership tends to be both Catholic and somewhat conservative, I should urge my readers to be sufficiently careful, clear-thinking and self-critical to avoid other forms of rank stupidity. To take just a single example, I would be rich if I had a dollar for every friendly email I have received denouncing as “socialism” any proposed legislation which instituted or adjusted any form of regulatory power over the economy. But while the abolition of private property is contrary to the natural law (and in fact has been condemned by the Church), the mere regulation of this or that aspect of economic affairs is not socialism, and cannot be declared immoral simply by uttering that dreaded name.

Suffice it to say, under this heading of “Irrelevant Objections”, that if alleged natural rights do not derive from the moral obligations enjoined by the natural law, they are not natural rights, and cannot be used to validate or invalidate any human law. Similarly, we need to guard against ignorant shortcuts and/or category mistakes in creating artificial moral imperatives. For other necessary distinctions, I refer back to Part 2, where the subject is not the natural law but the common good.

Missing Laws

It is a different thing entirely to reproach a government for failing to enforce the natural law. But this failure will not ordinarily precipitate a crisis of conscience. There are in fact a great many violations of the natural law which a prudent government will avoid criminalizing. Among other things, the natural law teaches that we owe worship to God and that it is immoral to deliberately frustrate the procreative end of marriage when husband and wife engage in the marital act. But it would be a rare (and imprudent) government that would seek to monitor the private lives of citizens so closely as to criminalize and punish the failure to pray or the failure to be properly open to procreation.

In some cases, of course, we may reasonably advocate that a particular violation of the natural law should be criminalized. For example, though incomprehensible to most in our culture, it is not unreasonable to advocate criminal penalties for producing and marketing various kinds of contraceptives; to prohibit the publication and distribution of unabashed pornography; to make divorce illegal; or to punish the refusal to provide reasonable help to one’s destitute parents—all of which mark fairly serious violations of the natural law. But when it comes to criminalizing violations of the natural law, prudence is required. It is neither practical nor beneficial to the common good to make every immoral action also illegal.

More to the point in this discussion, the absence of a law does not require that we do anything contrary to the natural law, and so cannot present us with a crisis of conscience.

Restrictive Laws

The next step up from missing laws would be those laws which do not command what the natural law prohibits but rather restrict what the natural law permits. For example, drinking alcohol and gambling are not intrinsically immoral, but both are prohibited or otherwise restricted in many legitimate instances. Similarly, there is nothing in the natural law to prohibit marriage between what we might call morally eligible males and females. Yet there have been just laws in various times and places which restrict the freedom to enter into civil marriage for various reasons—such as age restrictions and stability requirements, or even restrictions on various forms of inter-marriage to preserve peace and public safety in unfortunately volatile situations.

Here the rule is fairly simple, at least with respect to absolute morality. What is prescribed by the natural law may not be morally restricted or prohibited; but what is merely permitted by the natural law may be restricted or prohibited for the common good. Gambling and “drinking” (at least in responsible recreational senses) are permitted by the natural law but not enjoined by it. Marriage between otherwise available men and women of differing classes and conditions is permitted by the natural law but, again, not enjoined by it. While restriction of such marriages is foreign to our contemporary way of thinking—and we all enjoy a good love story, if it has a happy ending—various civil restrictions on who can marry whom have been imposed throughout history, without violating the natural law.

Perhaps I should clarify the sense in which I am using the terms just and unjust in describing laws. I am referring to the intrinsic morality or immorality of the law taken in isolation from other laws. In this sense, a law is just if it does not command something that the natural law prohibits or forbid something that the natural law enjoins. There is a broader sense of justice in law as well, in that it is in some sense unjust—and certainly contrary to the common good—to restrict without a sufficient reason the liberty with which the human person is endowed by his very nature (possessing intellect and free will). But here I have been more interested in whether or not a given law is intrinsically unjust, that is, unjust in and of itself in every situation.

Restrictive laws of many kinds may be passed for good reasons, as beneficial to the common good, or for bad reasons, arising from poor judgment, prejudice or selfish interests. But this is another category for which I refer the reader to the second part of this series, which deals with the prudential judgments necessary to secure the common good. We may oppose one or another of these laws, and even oppose them vehemently and for good reasons, but they do not create in us a crisis of conscience, for they neither force us to do what the natural law prohibits nor prevent us from doing what the natural law enjoins.

Permissive Laws

But what of laws which expressly permit—and so even facilitate—what the natural law forbids. It is just here that we begin to have a serious problem. It is one thing for there to be no law prohibiting some vice; it is quite another for there to be a law which expressly protects a vice. It is even worse to have a law which both protects and actively promotes a vice. And it is still worse to have a law which not only protects and promotes a vice but restricts the efforts of others to combat this vice.

This is the most common moral issue presented to us by Western governments in our time, when awareness of the natural law has been lost, the Christian underpinnings of our civilization have been swept away, and false notions of the good dominate our secular culture. Because our culture is built on ideals of pervasive pleasure and radical human autonomy in a universe regarded as otherwise without meaning, we face growing numbers of morally absurd laws, such as those facilitating abortion, gay marriage, gender changes and other denials of reality in direct contradiction to the natural law.

This is understandable in a culture which takes nothing as “given”, and therefore does not perceive that each person is “gifted” into being and beloved by God. Under such circumstances, human ingenuity in pursuit of human desire becomes a heroic ideal, with no standard of measurement to determine whether a desire is good or bad (and, for those who have eyes to see, causing a marked deterioration in human happiness on all sides as a result). But bad as this is, this preliminary state of affairs presents us with a personal challenge more than a crisis of conscience.

In other words, at this preliminary permissive stage of the law, we face the challenge imposed on us by two inescapable moral principles: (a) We really are our brother’s keeper; and (b) We are bound to seek the common good. This means that we must find increasingly creative and effective ways to convince others that many modern values are morally wrong, that laws which protect and implement these values are not “precepts of reason in accordance with the natural law”, and that changing such laws (along with the errors they foster and the practices they protect or encourage) will only enhance the common good.

Still, in the case of merely permissive laws, no one is personally forced to disobey a law which otherwise would require him or her to do something immoral, something contrary to the natural law. And so this is not yet the worst case.

Laws of Compulsion

But when a human enactment enjoins a course of action which violates the natural law, there is no moral choice but to deny that this enactment is a law and, as a totally legitimate consequence, to refuse to comply with it. For in these cases, compliance means to violate the natural law—in other words, to do evil. Thus, for example:

• A doctor may not abort a baby with Down Syndrome, whatever may be prescribed by statute to the contrary.
• A counselor may not encourage a woman who has had “too many” babies to be sterilized no matter what rules are on the books.
• A charity may not profess openness to gay marriage in order to meet governmental criteria for certain kinds of approval and support.
• A citizen may not denounce to the authorities a nurse who refuses to participate in immoral medical procedures regardless of the regulations.
• Parents may not educate their children to believe what is false on demand of the law, nor accept the State’s authority to take their children because they have refused to comply with this law.

In these examples, and many others, civil statutes and regulations not only may be disobeyed but must be disobeyed, no matter what the personal cost. insofar as they command us to do what is evil.

Here it will be worth mentioning an intermediate type of case* which does not demand the same stark decision, though it is repugnant enough in itself. I am referring to the various kinds of taxes and other enforced payments (all of which may be regarded as taxes, such as required insurance payments) which can be levied to pay for immoral actions that are protected by law. Here the government is taking our money against our will. We may regard it as a form of theft that we are powerless to prevent, knowing that the funds will go into a pool, some portion of which will be used for evil.

But that is always the case with taxation. Taxation (I dare say invariably) involves remote material cooperation with evil, which is both morally permissible and truly unavoidable in this world. We are not required to go to jail rather than pay a tax which, in part, will be used to fund things that are morally abhorrent, and which in any case will be taken from us. In exactly the same way, we are not required to avoid making a moral purchase from a company which will use some of its funds (through its policies, its officers, its directors and/or its shareholders) for immoral purposes. Nor are we required to do without electricity because the electric company will use some of its revenue to supply power to the local abortion clinic.

Remote cooperation with evil is sinful only when it is formal—that is, when we engage in it because we approve of the evil in question. To avoid remote material cooperation with evil, we may choose a course of civil disobedience or of boycotting, depending on what we think will best serve the common good, but such a course is not morally required.

Conclusion

We are called to act for the common good insofar as we are able to do so. But we are actually and specifically bound to evade or disobey human enactments that would force us personally to perform an action which is contrary to what the natural law requires.

Again, such an enactment is not a precept of reason in accordance with the natural law. It is not a law. It has no moral authority. To do such evil out of a misplaced respect for “the law” is to confuse something with nothing. Such nothingness is not for us: As St. Luke wrote in the Acts of the Apostles (17:28), we live and move and have our being only in the God Who Is.

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* There is another common case which has too many variations to cover here: This involves a person in a private business providing services to the general public, who is asked to provide a service specifically for an event which he or she finds immoral, such as a gay wedding. This is analogous to the moral dilemma in an earlier period which found innkeepers unwilling to let a room to an unmarried couple. Recently many judicial decisions (but not all) have imposed serious damages on those who have refused to provide the service in question. It is a tribute to LGBTQ power in our culture that those affronted have the money and connections to bring such costly and time-consuming cases so easily before the bench. However, whether there is a moral obligation to refuse the service requires careful thought, including an assessment of the specific circumstances. This problem and the ways to avoid it are worth careful consideration at another time.

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Previous in series: What is the law? When can we ignore it? Part 2: The Common Good