Changing Unjust Laws Justly: Pro-Life Solidarity with "The Last and Least"

3. The Problem of Intrinsically Unjust Laws

3 . T H E P R O B L E M O F I N T R I N S I C A L LY U N J U S T L AW S Law: Justness and Unjustness As Chapter 1 recounted, the British pro-life movement’s most concerted attempt to change the abortion law was made between 1987 and 1990, beginning with its support for the Abortion (Amendment) Bill, introduced by David Alton, MP, to reduce the upper limit for abortions to 18 weeks. The anticipated life-saving consequence (or effect) of the bill’s enactment was sufficient for most pro-lifers to support the bill long in advance of its being published. David Poole, Q.C., the chairman of the Association of Lawyers for the Defence of the Unborn (ALDU) criticized such rash support for proposed legislation that had not even been drafted: “Lawyers usually prefer to read contracts before signing them, or advising their clients to sign. And we were a little surprised at the enthusiasm of some of our friends to sign and endorse the Bill before they had seen or read it.”1 Ten years after the campaign for the Alton Bill I interviewed John Smeaton, the national director of SPUC, the political arm of the British pro-life movement that had been the main supporter of the Alton Bill. I was keen to discover whether the pro-life movement was, by that time, attentive to the legislative norm it was choosing to support, or whether, as at the time of the Alton Bill, it focused primarily, if not exclusively , on the consequences of legislation. In SPUC’s attempts to restrict abortion, I asked, did it matter whether the endorsed bill stated, for example: (i) “Abortions will be permitted up to 10 weeks and prohibited after 10 weeks,” or (ii) “Abortions will be prohibited after 10 weeks,” or (iii) “Abortion before 10 weeks will not be subject to punishment under the law”? 1. David Poole, Q.C., ALDU News and Comment 37 (spring 1988): 1. 90 Smeaton’s response was significant, given that he has had a leading decision-making and organizational responsibility2 for SPUC’s legislative campaigns: First of all, this is not a question I have really thought about before. And I suppose the reason I have not particularly thought about it before is because I would have automatically supposed that it is the effect that matters. I suppose the counterargument to that would be: is there a danger that a particular form of words would set some sort of legislative principle which could be built on in a negative way in the future? I think this is a political consideration we would be bound to think about. Overall, generally, I would say that it is the effect of the law that matters.3 Smeaton’s response to my question showed not only that he (and, by implication, the pro-life movement that he led) focuses on the consequences of enacting legislation rather than on the legal norm being supported, but furthermore that there had been no previous consideration of the possibility that there might be a need to address specific legal (in fact, both legislative and jurisprudential) dimensions of the question . If one considers only the consequences (effect) of enacting a law, then the distinction, made in the previous section, between permitting and tolerating moral evils becomes redundant, because the distinction between a law permitting and a law tolerating some immoral acts (say, adultery) resides in the legislation itself and not in the behavior exhibited subsequent to the law’s enactment. I contend that Smeaton’s response , a response typical of the attitude of large sections of the pro-life movement both in Britain and elsewhere, overlooks the requirements of law. What is law? What is required when judging the suitability of a legislative proposal? How important is the factor of justness in laws? What is meant by an unjust, or even an intrinsically unjust, law? Can one ethically enact unjust laws? Such questions have been generally overlooked by the pro-life movement, but they require careful consideration . the problem of intrinsically unjust laws 91 2. John Smeaton has been national director of SPUC since 1996 and before that, from the late 1970s, he was its general secretary (in practice, the deputy national director ). 3. Smeaton interview, 6 Aug. 1998. The Essence of Law What is...