Action Alert!

The Nature of Law and FOCA

by John M. DeJak


As the threat of the Freedom of Choice Act looms before us, this article by John M. DeJak provides guidelines, which will assist in judging whether various forms of legislation and governmental actions are in compliance with the nature of law as firmly held by the Catholic Church and clearly expressed by St. Thomas Aquinas.

Larger Work

The Wanderer

Publisher & Date

Wanderer Printing Company, St. Paul, MN, January 15, 2009

On December 31, 2008, the Holy See announced that it was adopting a new posture regarding the adoption of Italian laws for enforcement in Vatican City State. Since the 1929 Lateran Treaty, the Holy See's policy was to adopt Italian laws for the Vatican City State. There was a provision in the 1929 treaty, however, that allowed the Holy See to reject legislation that was at odds with Church law. Nevertheless, when evaluating Italian laws for enforcement and adoption on Vatican territory, the presumption was always toward adoption. Now, however, Vatican policy has changed. There will no longer be the presumption for adoption, but rather, the text of each new legislation will be studied by the Holy See to discern whether it is compatible with Church law and Catholic teaching.

The reason proffered for this change in policy is the proliferation of anti-life and anti-family policies and legislation. This precisely needs to be our posture today as we Americans evaluate new legislation.

The great G. K. Chesterton wrote, "[ t] he fact that Thomism is the philosophy of common sense is itself a matter of common sense." Nevertheless, in this age of nonsense, Catholics would do well to dust off their Summas and return to the clarity of St. Thomas Aquinas. This is especially the case when evaluating federal and state legislation . . . It is all the more pressing as we are faced with President-elect Obama's promise to sign the murderous Freedom of Choice Act (FOCA).

Indeed it is time for everybody (Catholics in particular) to get back to the basics and understand some fundamental principles about the nature of law and its purpose. One need not be a lawyer to "get it"; to intelligently comment in the public square about state or federal legislation or governmental action. This author, an attorney, hopes that plumbers and professors, executives and electricians, moms and maids will find it to be useful in helping to intelligently discern and articulate opposition to various forms of legislation that threaten the future of our nation.

This article will not give an exhaustive treatment of basic philosophical or jurisprudential principles. The intent here is to provide a framework with which to judge particular legislation and governmental action.

The Nature Of Law

Aquinas' definition of law is "an ordinance of reason, made by him who has care of the community, for the common good, and properly promulgated." One need not be a Catholic to acknowledge this definition as perennially valid and unassailable. A true law is an ordinance of reason — as opposed to an ordinance of will.

Suppose your state assemblyman wished to introduce legislation that would prohibit child pornography on the Internet within his jurisdiction. This would extend already existing laws designed to protect children from sexual abuse to a new situation and a new media. This is a true law because it is reasonable to protect children from exploitation and both psychological and physical harm. Now suppose your teetotaler state assemblyman wished to introduce legislation that would prohibit drunkenness. Not only would this be unenforceable, it would be unwise. On its face, it would seem that the legislator is simply legislating his preference rather than basing the law in reason. (Admittedly, these are simple examples.) Aquinas said that the true exercise of reason is the conforming of the intellect to reality, that is, the truth. If a law is not grounded in reason, then it becomes simply whatever the lawmaker wishes it to be. In other words, it becomes an exercise in raw power; the imposition of the lawmaker's will upon the community he has care for.

In the legal community, there are those who do not subscribe to the Thomistic description of the nature of law. Legal positivists, utilitarians, Marxists, pragmatists, and others represent various schools of legal thought that would deny — in one aspect or another — the traditional definition of law put forth by the ancients and given clear expression by Aquinas. An ordinary person, Catholic or other, can identify those who deny the nature of law by this test: Do they believe law is an ordinance of reason? If so, do they believe that right reason equals the conformity of mind to reality? If not, then a person should be rightly suspicious.

The Four Types of Law

Aquinas' general definition of law is descriptive of and applicable to what has been traditionally held by the Church to be the four types of law: 1) the eternal law, 2) the divine law, 3) the natural law, and 4) the positive law. We have knowledge of the eternal and divine law through the grace of faith. The eternal law is simply God's plan for the universe (i. e., how things are supposed to work). The divine law is Revelation, or God's explicit instructions to human persons (e. g., the Ten Commandments).

We know the natural law through the use of our reason. We can demonstrate this fact by an appeal to history and experience. The near universal prohibition by all cultures of murder, theft, and lying are ample evidence for the existence of this unwritten law that is said to be inscribed on the human heart.

Finally, human persons — in their various forms of government — attempt to concretize the natural law explicitly through "positing" or putting forth laws. Hence, the positive law.

How Is A Law Unjust?

The believer knows that natural law is a participation of the eternal law and that it is always and everywhere valid. Even so, discerning the correct conclusion from the natural law in a particular situation may be tricky, but that is where the Church's Magisterium comes in to help. For the non-believer, the natural use of his reason will provide him the answers he needs — but in certain tricky situations he is at a disadvantage.

In using our reason with Aquinas' definition of law as a guide, how do we know if a law is unjust? First, if it doesn't fulfill the definition of law: "an ordinance of reason, made by him who has care of the community, for the common good, and properly promulgated." That's the easy answer. But Aquinas provides more distinctions to assist us. A law is unjust in two ways: 1) if it is against human good, or 2) if it against divine good.

A law is against the human good if it is not in the best interests of individual citizens. A law not in the best interests of individual citizens is one that has a bad purpose (e.g., the aggrandizement of politicians and their vainglory), or is not within the competence of a lawmaker (e.g., legislation telling a parent how to discipline his child in a particular situation), or is written in such a way where burdens are imposed unequally on the community, although with a view to the common good (e. g., confiscating lands from the wealthy to give to the poor). Both St. Augustine and St. Thomas Aquinas call such ordinances not laws but "acts of violence."

The second kind of unjust law is the law against the divine good. A law is against the divine good if it commands anything that is contrary to the divine law (i. e., idolatry or anything against the explicit commands of God). A law against the human good in certain circumstances may be tolerated (e.g., the current income tax system), but a law that is against the divine good must not be tolerated — it must be resisted ( e. g., any law that allows the intentional killing of the innocent or the type of idolatry accorded a political leader, such as the type employed toward Hitler). In fact, one has an affirmative obligation to oppose any such law. In short, any law against the divine good is also against human good; but not every law against human good is against the divine good.

Application To FOCA

Let us now turn to the legislation that President-elect Obama said would be his first priority once he takes office: The Freedom of Choice Act (FOCA). As regards the question whether it is a just law, an application of Aquinas' principles demonstrates that it is not.

First, it fails the very definition of law as being an "ordinance of reason." The unborn child is just that, a child — a human person at the initial stages of his development. This is not theology; this is scientific fact, reality. No amount of redefinition or semantics will make this not so. If not a human being, what is this entity? What possible reason could there be for the intentional killing of a child?

The text of FOCA, in one of its findings, reiterates the Supreme Court's abortion jurisprudence stating "[t] he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives." Is this a sufficient reason: the participation of women in economic and social life? This is an explicit affirmation by the congressional sponsors that it is permissible to kill children so that a woman may do as she wishes.

The legislation therefore fails in fulfilling the most essential characteristic of law — that it be an ordinance of reason. The collective intellects of the sponsoring senators do not conform to reality, and their legislation is not an ordinance of reason; rather it is an exercise of raw power.

Secondly, the legislation is contrary to human good. The legislation's purpose as indicated in the bill is "to prohibit . . . the interference of the government with a woman's right to choose to bear a child or terminate a pregnancy, and for other purposes." On its face, the law is unjust as to its purpose. Put bluntly, the lawmakers quite plainly state that the government is prohibited from stopping an act of murder or protecting an innocent human person from being murdered. What is the purpose of government if not this?

The FOCA law is also unjust because it is not within the competence of a lawmaker to legislate something that is contrary to the natural law. In other words, the lawmaker's duty is to concretize the natural law for the care of the community, not violate it. Likewise, from a constitutional law perspective, the assertion of congressional power under the 14th Amendment for this act leaves something to be desired. (This, of course, is material for another article.) The law is also unjust as to the disparate treatment it affords different groups (i. e., women vs. unborn children) even though, in its authors' eyes, it may be intended for the common good. But how is this possible when they have consigned many of our little fellow human persons to death arbitrarily? How can the common good tolerate murder?

Finally, the FOCA law is contrary to divine good. The Fifth Commandment is an instance of the natural law raised to the status of divine law. The Lord has commanded what reason tells us: In no way is it ever permissible to intentionally take the life of an innocent human person. Since FOCA is a violation of the divine law, it is the duty of all commonsense thinking persons, especially Catholics, to affirmatively resist and fight this legislation.

As heirs to the true definition of law, we Catholics must roll up our sleeves and do the tough work of defending our fellow little humans. That requires the hard work of thinking. Take the opportunity to read the actual text of FOCA (you can get it online here:, look to Aquinas and the Magisterium of the Church for guidance, and enter the debate!

Most important, pray. In addition to using his solid principles to inform our intellectual discourse on the subject, ask the intercession of St. Thomas Aquinas. Especially ask the intercession of Our Blessed Mother who weeps for all of her children — born and unborn. President-elect Obama's posture toward Catholics in America seems to be the same as Stalin's when he said " how many divisions has the Pope." It's time to show him and Congress how many divisions the Pope has — both terrestrial and celestial.

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(John M. DeJak, a lawyer, is headmaster of Chesterton Academy [chesterton academy. org] in Minneapolis. He and his wife, Ann, have five children.)

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