The Limits of the Law: Remarks on Edward Peters

“Catholics may, in cases of necessity, tolerate a compromise of fundamental principle. They may not, however, consent to, let alone work for such compromises, even in an attempt to reduce a greater evil, or achieve a greater good.” — Edward N. J. Peters, Catholicism in Crisis (July ’83)

Thus Edward Peters concluded “The Forbidden and the Inevitable”, his riposte to an earlier essay in Catholicism in Crisis by Christopher Wolfe (May, ’83). Now I hesitate to speak critically of Mr. Peters, for I admire him a great deal and respect his scholarly and journalistic abilities. However, since he “heartily requests critical review” of his analysis, I offer in all charity the following remarks on this most crucial question.

The heart of Mr. Peters’ argument appears to be the following principle: “An act (when rigorously defined) is either prohibited or permitted. There is no middle ground.” Thus he answers in the affirmative his own rhetorical question: “Is there any doubt that a law which prohibited religious persecution except in cases of Jews and Mormons would teach that religious persecution of Jews and Mormons was acceptable?” I would suggest that there is.

Mr. Peters, I fear, has misstated a cardinal principle of jurisprudence enunciated by legal philosophers from St. Thomas Aquinas to Blackstone. An act, according to that tradition, is either prohibited or prescribed. Based upon the natural law dictate “Do good and avoid evil”, it is incumbent upon civil society to command what is right and forbid what is wrong. This is contained in the very definition of law.

Now the “middle ground” between what is commanded and what is forbidden is precisely what is permitted or tolerated. In the ideal system of law, presumably, every act which is good is commanded and every evil act forbidden. There would be no middle ground. Of course, in regimes of flesh and blood, one cannot make every action, whether good or evil, subject to legislation. Mr. Peters himself cites St. Thomas Aquinas on this point.

John of Salisbury, secretary to Thomas A. Becket and one of the authorities cited with approval by Aquinas, comments on Deuteronomy (17:20) as it applies to the Christian statesman. The text is “He shall not incline to the right hand nor to the left”:

One turns aside to the left who is too ready to punish subjects and take revenge on them for their faults; on the other hand, he deviates to the right who is too indulgent to offenders out of excess of kindness. Both roads lead away from the true path (Policraticus, Book IV, Chp. 12)

Much the same point is made in Robert Bolt’s masterful dramatization of the life of St. Thomas More, “A Man for All Seasons”, based upon the record of his words and deeds left by his son-in-law, William Roper. In the following scene, Roper and Margaret, More’s daughter, attempt to persuade him to have Richard Rich arrested:

MARGARET: Father, that man is bad.

MORE: There is no law against that.

ROPER: There is! God’s law.

MORE: Then God can arrest him. Go he should, if he were the Devil himself, until he broke the law.

ROPER: So you give the Devil benefit of law?

MORE: Yes. And what would you do? Cut a great road through the law to get after the devil?

ROPER: I’d cut down every law in England to do that.

MORE: Oh? And when the last law was down and the Devil turned round on you, where would you hide, the laws all being flat? This country’s planted thick with laws: man’s laws, not God’s; and if you cut them down — and you’re just the man to do it — do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of the law, for my own safety sake.

Thus there is a place within Christian politics for enacting laws which prohibit evil as far as prudence will allow and permitting those evils which cannot be prudently eliminated.

Mr. Peters takes Christopher Wolfe to task for acknowledging that Catholics must “fight for compromises” in certain cases. In the obvious sense, he is perfectly correct.

Compromise can never be the end. However, if the enemy has penetrated ten miles into the homeland, and the generals can foresee no reasonable hope of ever regaining more than five, must not the army fight to regain what ground it can, no matter how unsatisfactory this partial victory might be?

I turn now to what Mr. Peters rightly calls “the difficult case”, namely the law which prohibits abortion, except in cases of verified rape and incest. First of all, let me state unambiguously that these absurd exceptions are logically equivalent to a law which prohibits rape, except on Sundays and holy days of obligation. However, for reasons I have explained elsewhere (“Separated Brethren in Pro-life Ranks”, The Wanderer, Aug. 7, 1980), such is not the consensus in America, even among the most dedicated circles of the pro-life movement.

Clearly a law which prohibits abortion in general but requires abortion in cases of rape or incest would be unconscionable, for here the law would perversely command what is wrong. However a law whose prohibition of a given evil extends so far and no farther, neither commands that evil, nor condones it. Therefore, if the irrational condition of the public mind precludes the prohibition of abortion universally, but would, if rightly approached, accept a prohibition, it is the latter which must be placed before the public, and fought for. (Having said this, I must confess that I am not at all convinced of this necessity. Yet because it is a point of empirical fact, I remain open to further evidence.)

This brings us to the notorious Hatch Amendment, the controversy over which has unfortunately generated far more heat than light. My first premise in all that follows is that abortion is a species of murder. (Mr. Peters’ use of the term “feticide” is more precise, but too esoteric to make the point clear.) My second premise is that the definition of, and imposition of sanctions upon, murder has traditionally been understood as falling within the province of the States, rather than the Federal government. This localization is endorsed not only by the Tenth Amendment, but by the principle of subsidiarity, the cornerstone of Catholic social teaching. Thus the optimum legal status of the prohibition of abortion is the one such prohibitions enjoyed up until Roe v. Wade, and the one that the Hatch Amendment seeks to restore.

The difficulty here is that Roe v. Wade has subverted the entire legal structure of federal-state relations on the question of murder in general, and abortion in particular. Although Roe v. Wade addresses only one species of murder, it makes possible by its precedent an entire series of similar decisions on “the right to die”, euthanasia, suicide rights, etc. The only complete and lasting guarantee of the rights of the unborn will be a constitutional amendment prohibiting abortion categorically in every State of the Union, with appropriate amendments to the Federal code, specifying minimum and maximum penalties for those found guilty of the practice. It would be just, but not perhaps entirely merciful, to make abortion a capital crime, punishable by the same mode of execution used upon the fetus. While it is perhaps unlikely that such an unqualified amendment would be ratified, one ought to fight for as strong an amendment as has reasonable hope of success.

The parallels between the battle for the inalienable right to life in this century and the battle for the inalienable right to liberty in the last are both illuminating and ominous. Lincoln, in his debates with Douglas, argued that slavery in the South must be tolerated because the Founding Fathers, in writing the Constitution, had prudently kept the divisive issue of slavery, which “peculiar institution” they were powerless to abolish, in the hands of the States. Lincoln would tolerate slavery, however, only as long as everyone agreed that it was intrinsically wrong and that “the public mind could rest in the confidence that slavery was on a path of ultimate extinction.”

The Dred Scott decision, however, combined with the insistence of the South that slavery was a “positive good” whose beneficent effects ought to be enjoyed by the western territories, precipitated the Civil War, and necessitated the constitutionally disastrous, but politically unavoidable Thirteenth, Fourteenth, and Fifteenth Amendments. God forbid that the abortion issue be decided by bloodshed but, to paraphrase Lincoln’s Second Inaugural Address, if God wills that every drop of blood spilled in the slaughter of the innocent unborn be paid by another spilled by the sword, let us fight with honor in confidence of the right as God has given us to see it.

I hope that I have represented Mr. Peters’ position accurately and responded to it adequately. In emulation of his intellectual honesty and generosity of soul, I also invite, with all sincerity, “critical review of my argument”. For I believe, as he does, that these matters are of too grave a consequence to be bruited about without sufficient reflection and thought.


At the time this article was written, Kevin G. Long was a doctoral candidate in Government at Claremont Graduate School in California, and a frequent contributor to several Catholic publications.

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