Principles of Action Concerning Civil Law

When St. Peter faced the Sanhedrin in Chapter 5 of Acts of the Apostles, he is questioned as to why he did not stop teaching in the name of Christ as he was ordered previously to do. Peter’s response is ingenious, to say the least; “We must obey God rather than men” (Acts 5: 29). Peter is not only exhorting the Apostles here, but all Christians. At times, one must recognize that when the dictates of man are in conflict with the Creator, it is at these times man is obligated to follow the dictates of God.

In his encyclical, Evangelium Vitae, St. John Paul II recognizes this conflict of civil law and divine law concerning respect for human life. It becomes rather apparent that modern Western society no longer holds a Christian view of freedom or law. In turn, a Catholic view is seen by many as “authoritarian.” As St. John Paul II states, “At the basis of all these tendencies lies the ethical relativism which characterizes much of present-day culture. There are those who consider such relativism an essential condition of democracy, inasmuch as it alone is held to guarantee tolerance, mutual respect between people and acceptance of the decisions of the majority, whereas moral norms considered to be objective and binding are held to lead to authoritarianism and intolerance” (Evangelium Vitae, no. 70).

popeHowever, it should come as no surprise that St. John Paul II rejects this modern thesis, “The basis of these values cannot be provisional and changeable “majority” opinions, but only the acknowledgment of an objective moral law which, as the “natural law” written in the human heart, is the obligatory point of reference for civil law itself” (Ibid). As the encyclical points out, the tradition that the civil law flows from the moral law has long been a teaching of the Church.

But the question becomes, what is one to do if the civil law is not in conformity with the moral law with respect to the right to life? Again, St. John Paul II gives the reader a few answers to this particular question. In section 71 of the encyclical he states, “Consequently there is a need to recover the basic elements of a vision of the relationship between civil law and moral law, which are put forward by the Church, but which are also part of the patrimony of the great juridical traditions of humanity.” While St. John Paul II did not directly state it, there is an implication that Catholic universities, especially those that have law schools and public policy programs, should be doing more to educate those students in the proper relationship between the civil and moral law. The simple fact is that no one who has had a Catholic education should be parroting the old pro-abortion mantra that “I am personally opposed to abortion, but I won’t impose my faith on others.”

However, the most direct principle of action concerning the civil law and the respect for human life is the principle of incrementalism. He states, “A particular problem of conscience can arise in cases where a legislative vote would be decisive for the passage of a more restrictive law, aimed at limiting the number of authorized abortions, in place of a more permissive law already passed or ready to be voted on…an elected official, whose absolute personal opposition to procured abortion was well known, could licitly support proposals aimed at limiting the harm done by such a law and at lessening its negative consequences at the level of general opinion and public morality. This does not in fact represent an illicit cooperation with an unjust law, but rather a legitimate and proper attempt to limit its evil aspects” (Evangelium Vitae, no. 73). In essence, this principle gives a legislator a guide on how to change a corrupted law to be more just.

The concept of the principle of incrementalism is simple. In brief, the principle states the following: 1) that an evil law must already exist, 2) that the proposed legislation must limit the harm of the existing evil law, and 3) that the proposed legislation must lessen the evil law’s negative consequences at the level of general opinion and public morality. But what do these elements mean?

The first element is easy to understand. A legislator must be fighting against some law that is unjust. In the case of abortion in the U.S., one merely need to know that the evil law that exists are the cases of Roe v Wade and Doe v Bolton. But sometimes the absence of law allows a practice to take place as well. So for example, when it comes to human cloning, most states do not have laws that prohibit the practice. The silence of law permits the practice. So, in effect, there is an unwritten law that may need to be fought.

The second element has seen much debate regarding the phrase “limiting the harm done by such a law”. When it comes to the subject of abortion, many absolutists (those who believe the incremental approach to be wrong) try to argue that the term “harm” only refers to abortion. So, for example, legislation that would mandate that a minor girl receive parental consent to receive an abortion would be immoral for the absolutist since it still allows for abortion to take place in certain circumstances. However, this is an overly narrow view of what John Paul II meant by the term “harm.” Abortion can cause all sorts of harm other than just the unjust loss of human life. In the case of parental consent legislation, one must understand that in addition to abortion practice that the family unit has also been dramatically affected as well. In the case of the U.S. Supreme Courts abortion companion cases, not only did it give a legal right to abortion, it also gave minors the ability to get an abortion without involving their parents. This is a clear violation of the principle of subsidiarity. John Paul II used the word “limit” instead of “abolish” for a good reason hence, U.S. Catholic Bishops statement on incrementalism, “Sometimes morally flawed laws already exist. In this situation, the process of framing legislation to protect life is subject to prudential judgment and “the art of the possible.” At times this process may restore justice only partially or gradually... Such incremental improvements in the law are acceptable as steps toward the full restoration of justice. However, Catholics must never abandon the moral requirement to seek full protection for all human life from the moment of conception until natural death” (Forming Consciences for a Faithful Citizenship, no. 32).

What makes the aforementioned quote from the U.S. Bishops is that the last sentence segue ways into the third element of the principle; that the legislation must lessen [emphasis mine] the evil law’s negative consequences at the level of general opinion and public morality. The question that needs to be asked is: how is this legislation going to move society in the direction of the Culture of Life? In seeking for the full restoration of justice, law can be the great teacher. Legislation, such as Unborn Victims of Violence Legislation, can be a useful tool in explaining this element. This type of legislation recognizes that unborn children can be the victims of crime. So if an unborn child is killed during a drunk driving accident, then the perpetrator can be charged with a crime (such as manslaughter) against the child. These laws help people see the humanity of the unborn child and make them question the morality of abortion. It is in this way that laws, such as these, help move public opinion away from the acceptance of the evil law.

St. John Paul II understood the reality that law is a great teacher. When civil law is perverted it no longer is a great teacher, but rather an abusive teacher that thwarts the virtue of justice. By no means is one obligated to follow an unjust law. As the Catechism of the Catholic Church states, “If rulers were to enact unjust laws or take measures contrary to the moral order, such arrangements would not be binding in conscience” (no. 1902).  But when this conflict occurs within the law, the law may need to be treated like a student and be guided toward the good. The principle of incrementalism provides this path to restore the order between the moral law and the civil law.

Joe Kral has been involved in the pro-life movement since he has been in college.  His MA in Theology was completed at the University of St. Thomas where he specialized in bioethics.  From 1996-2003 he was the Legislative Director for Texas Right to Life.  During that time he was also a lobbyist for the Department of Medical Ethics at National Right to Life.  From 2004-2007 he consulted the Texas Catholic Conference on pro-life legislative initiatives.   In 2006 he was awarded the “Bishop’s Pro-Life Award for Civic Action” from the Respect Life Ministry in the Diocese of Dallas.  He currently serves as a voluntary legislative advisor to Texas Alliance for Life, is a member of the Fellowship of Catholic Scholars, taught as an adjunct professor of Theology at the University of St. Thomas, teaches as a Forward Toward Christian Ministry instructor for the Archdiocese of Galveston-Houston, is a member of the Knights of Columbus, and is doing doctoral studies at Harrison Middleton University where he is specializing in the ethical and legal theory of St. Thomas Aquinas. He has been married to his wife, Melissa, since 2004 and they have 2 children together. They attend St. Theresa’s Catholic Church in Sugar Land.
Articles by Joe:

  • Rosalinda Lozano

    I’m sorry, but this article makes no sense to me. I understand the concept and support moral incremental laws, such as Fetal Homicide Laws. I strongly disagree in incremental laws that end with the acceptance, through our laws, of killing the child anyway. These laws are passed only for those who want to feel good about their actions with no fruit to show in their efforts. Any laws that include and end with the affirmation of abortion is an evil law masked in good feelings. Of course I would want ALL legal and illegal murders to end immediately, however, I would only support a morally sound incremental law as long as it is not written to appease the abortionists, Planned Parenthood and the liberal/homosexual agendas in need of playing God by including in that law that the child can be legally murdered as long as all of the above requirements are met and exceptions are included as loopholes. I believe that your opinion would change if you could hear the screams of the children being torn limb from limb in their mother’s womb. Unfortunately, because they are hidden, the urgency is not apparent in your article or in the hearts of those accepting such evil.

    • Joseph Kral

      Thank you for your reply. You pose an interesting question that needs to be fully answered. However, I don’t think a response here is the best way to answer your question (especially in light of some pro-life leaders responses to HR 36). As a result, I will definitely be working on another article that addresses some of your concerns. Let us all pray for an end to abortion!