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

4. Good Acts by Bad Acts?

4 . G O O D A C T S B Y B A D A C T S ? Even though all laws tolerating or permitting abortion can be identi fied as intrinsically unjust, as the two previous chapters have shown, and even though a negative judgment has been traditionally made against such laws, is it possible to argue that it can be ethically good (a good act) to vote for an intrinsically unjust law (a bad Act) if one is doing so for the purpose of restricting abortion? Any judgment about the goodness of a human action depends upon the soundness of one’s theory of action, and it must be acknowledged that among those who support restrictive abortion legislation are adherents of action theories rejected as erroneous and dangerous by Pope John Paul II in Veritatis splendor (VS) (n. 83). Support for restrictive abortion legislation also comes, however, from some philosophers who are generally regarded as favoring a sound ethic, consistent with the teaching of Veritatis splendor, and who believe that the teaching of that encyclical demonstrates the correctness of their view. Among these philosophers is John Finnis, whose argument will be subject to particular attention in this chapter. I shall address Finnis’s argument that votes for (unjust) restrictive legislation can be justified as material cooperation in evil, the evil associated with the act of voting being regarded as a “side effect” of the legislator’s action, and I shall show that his argument is based on an incorrect analysis of the act of legislative voting. I shall argue that Finnis’s analysis is based on the legislator’s intention and the consequences of his vote, and that it fails to specify accurately the “object” of his act. In particular, I shall challenge Finnis’s claim that VS 78, which specifies what is meant by the “object” of a moral act, provides a philosophical justification for his argument. This chapter will attempt to get to the heart of the ethical problem: does the act of voting to enact an intrinsically unjust law depend upon a consideration of the circumstances, the consequences, and the legisla121 tor’s intentions? Or is the identification of a legislative proposal as intrinsically unjust sufficient in itself to judge that a lawmaker acts immorally in voting to enact it? Material Cooperation and Side Effects Material Cooperation in Legislative Votes John Finnis argued, in a paper delivered in 1994 and published in 1996,1 that the principles of formal and material cooperation apply to the question of whether legislators can licitly vote to enact unjust restrictive legislation: In a state in which abortion is legally permitted up to (say) 24 weeks gestation , it is not necessarily unjust for a legislator to support a proposal to enact a bill of the form “Abortion is permissible up to 16 weeks.” For it is possible to support such a proposal precisely as a proposal to extend legal protection to the life of unborn children after the 16th week. That is the proposal whose adoption a legislator of upright conscience may rightly support. Such support is formal cooperation in making a just change in the law, but not in the retaining of the unjust denial of legal protection to unborn children up to 16 weeks. (One cooperates “formally” with A’s action X just to the extent that one intends or chooses—not merely accepts as a side-effect—that A shall accomplish something that A intends or chooses in choosing to do X.)2 Now of course, such a legislator’s support for the bill is also material cooperation3 in something unjust, namely the legislative act of continuing 122 ethical considerations 1. Finnis, “Unjust Laws in a Democratic Society.” This paper was originally given at a symposium “Catholics and the Pluralist Society—The Case of ‘Imperfect Laws,’” organized by the Congregation for the Doctrine of the Faith (Rome, 9–12 Nov. 1994). The proceedings of the conference, including Finnis’s paper, were published in Italian; see Joblin and Tremblay, I Cattolici e la Società Pluralista. 2. At this point Finnis inserts a footnote (n. 14) quoting directly from EV 74, which deals with formal cooperation in evil: “Indeed from the moral standpoint, it is never licit to cooperate formally in evil. Such cooperation occurs when an action, either by its very nature or by the form it takes in a concrete situation, can be defined as a direct participation in an act...