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

By Dr. Jeff Mirus ( bio - articles - email ) | Mar 09, 2018

In Part 1 of this article, I tried to explain that what we call a law is actually not a law if it lacks one of the four causes necessary to create a law: (1) Public promulgation, by (2) the proper authority, in order (3) to effect the common good, and taking the form of (4) a precept of reason in accordance with the Natural Law. But I also noted that human enactments which do not have all four causes will still often be called laws, and even those who oppose them may well call them “bad laws”. My point was they are not laws at all, which is the main reason we may morally disobey them. It is now time to look at how and when this is so.

I will not discuss unpromulgated enactments, or those promulgated without authority, for most of us do not live under unconstituted bully dictators who punish us for failing to comply with rules which they lacked the authority to promulgate or did not bother to promulgate at all. These things can and do occur. But even in the face of such illegitimacy, citizens are under no moral obligation to disobey the whims of a usurper unless they are instructed to do something which fails the test of the third or fourth causes, that is, something contrary to either the common good or the natural law.

For Catholics, questions about the common good should be far more difficult to resolve than questions about the natural law. This is because we do not have to be philosophers to understand fairly precisely what is enjoined and prohibited by the natural law. The natural law is the eternal law of God in natural things, and the Church is as authoritative in distinguishing moral good and evil as she is in distinguishing the truths of Divine Revelation. Moreover, the Ten Commandments are as fine a summary of the natural law as one could desire. Once we memorize them, we will have questions only around the edges, as it were, questions which the Church typically settles when the need arises.

Still, cases or laws violating both the common good and the natural law require attention. I will devote this second part of the series to the problems posed by enactments which fail to promote the common good, and I will reserve a third and final installment to the generally more severe problem posed by enactments which contradict the natural law itself.

The problem of the Common Good

While no proposed law for the common good can contradict the natural law—and indeed, if it fails to be a precept of reason in accordance with the natural law, it cannot be a law—a great many measures which do not violate the natural law are advocated for the common good without actually serving it. One of the ways in which such measures can fail to serve the common good is through a tendency to undermine respect for some aspect of the natural law. But, far more often, laws are simply unsuited to their purpose. When lawmakers are deficient in prudence, they often fail to properly assess a need, the reasons the need exists, and/or the means capable of fulfilling that need.

While we are all bound morally to act in ways that are conducive to the common good, the passing of laws is not the prerogative of the private person but of the public authority. Therefore, the primary responsibility for assessing the demands of the common good, and how best to fulfill those demands, lies with the public authority. Under the vast majority of conditions, in fact, it is far more damaging to the common good for many independent individuals to insist on their own legal determinations of how to act than it is to accept a certain amount of inefficiency—but at least a fairly cohesive inefficiency—on the part of the public authority.

Nonetheless, those in positions of public authority are as human as the rest of us, and so even with the best will they are prone to error in how they perceive problems, their causes, and their potential remedies. It is hardly rare that laws are directed at the “wrong” problem or employ the “wrong” means, as far as their purpose of strengthening the common good. But again, this problem must grow fairly severe to justify a refusal of obedience to the law when, though relatively inept, it does not violate the natural law.

Before considering disobedience to such laws, the nature of the common good must be understood. The common good does not consist in the sum total of private goods, as many modern thinkers have thought, and no theories of private goods can alter this reality. Rather, the common good is comprised of those goods which all persons share in common. For example, it is not directly a matter of the common good that persons A, B and C should be unusually secure and very rich; but it is a matter of the common good that systems basic to human security and productivity should be in place for the commonwealth as a whole, so that all may participate in the security and opportunity afforded to the whole.

In pursuit of the common good, therefore, an effective government will make reasonable attempts to provide safety from outside attack, security against crime, and other services and infrastructures in keeping with the basic customs and standards of the time for securing and promoting the spiritual, moral, intellectual, physical, social, economic and political well-being of the entire community.

Disobedience with respect to the common good

When is it morally acceptable or even morally required—based on the common good—to disobey a civil law? In theory, the answer is the same as always: Whenever the law is not real but apparent. But since I am here excluding those laws which fail to promote the common good by violating the natural law, that judgment is not easy to make. It is just here that the concepts of political advocacy and civil disobedience comes into play, and, in extreme cases, prudent efforts to change the regime.

In considering alternatives, the first requirement is to distinguish prudential matters pertaining to the common good from the strictly moral requirements of the natural law (which I will discuss in Part 3). Every culture tends, in different ways, to foster significant confusion on this score. I am going to take just one prolonged example to make my point.

Thus, we may think that everybody has a natural right to vote (which could be true only if everybody has a moral duty under the natural law to do so). But a moment’s reflection on history enables us to see that voting is a feature of certain kinds of political systems but not others, and that many different kinds of political arrangements can be perfectly legitimate for any given community.

Despite frequent exhortations to the contrary, even by many Churchmen, nobody has either a moral obligation to vote or a natural right to do so. If we have the political right to vote, of course, we are bound morally to exercise it for the common good insofar as that is reasonably possible, but even that does not require actual voting, for it may be impossible to exercise it for the common good, or the common good may be better served by protesting the culture’s misplaced confidence in voting.

Currently, many Catholic political theorists regard democracy as the political system which best reflects the dignity of all persons while also best implementing the principles of solidarity and subsidiarity. But many Catholic political theorists five hundred and more years ago thought the best political system was monarchy because it both possesses the greatest potential for the enactment of just laws and best reflects the rule of God. As Aristotle knew, every system has its good and bad side, and all are provisional in their implementation.

Let me push this example still further. Even with respect to democratic institutions, societies which do not afford the vote to certain classes of citizens are not thereby violating the natural law. Political systems may, without hindrance from the natural law, be guided by the votes of the barons of the realm, by all those with property, by males of a certain age, by all citizens over a certain age, or by no voting at all.

Again, my point here is not to come to a conclusion about democracy and voting. It is simply to emphasize the need to distinguish questions of the common good—which always depend on prudential judgments within the overall set of circumstances, problems and possibilities—from questions of the natural law, which are matters of absolute right or wrong.

Conclusion

As a general rule, bad laws with respect to the common good will be met by one of three responses: (a) Counter-advocacy, including the many approaches to changing public opinion and/or electing new public officials; (b) Civil disobedience as a witness of suffering in opposition to the law in question; and/or (c) Revolution, if that is deemed advisable and less damaging than continuing to accept the ill-conceived or ill-executed approach to the common good routinely taken by a particular government.

What is important to understand about such responses is that they must be prudentially determined, and almost never (absent violations of the natural law) entail a universal moral obligation. The situation may be bad enough with respect to the common good to warrant certain kinds of resistance even to the point of revolution, but there is typically no absolute moral obligation to take any of these courses when prudential matters lie at the heart of the disagreement. The course chosen will generally depend on the likelihood of success—for the common good.

On the assumption here that no clear violations of the natural law are involved, we are dealing with something like the situation that prevailed at the time of the American War for Independence. Tories were surely as morally justified in their decision as revolutionaries, though victory always (and usually unjustly) defines treason. In any case, nobody was morally obligated to reject English rule; but arguments could at least be made that it was the best course to follow in securing the common good.

When a law undermines the common good, one may feel called or even obliged in conscience to disobey it, depending on the clarity and the seriousness of the question. Reflective men and women recognize that there are ordinary pluses and minuses with respect to the common good owing to the positive and negative aspects of nearly all human efforts and activities. But legitimate instances of disobedience and resistance can be precipitated by particularly bad enactments which, it may be reasonably argued, have forfeited the character of law.

It is consistent with the difficulty of assessing the common good, however, that in most cases there can also be legitimate differences of opinion. Rather than being a matter of absolute morality, our decision is more like this: “The situation is very bad. I believe solution X is best of all the possible solutions. I am sincerely convinced in conscience that the best thing I can do to promote the common good is to attempt to implement solution X.” Again, others will disagree about the best course of action, and many will disagree legitimately. But we will find in the final part of this series that such differences cannot be legitimate whenever we are faced with an enactment that violates the natural law.

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