Prudence in Policymaking:

Is incrementalism ethical and effective?

 

By Clarke D. Forsythe

Senior Councel, Americans United for Life

 

Determining how to justly and effectively eliminate or limit unjust laws and conditions is a timeless and universal dilemma in political life. This is a recurring theme throughout American history --  it has challenged every conscientious political leader and every social reform movement. This challenge has recently played out in eastern European countries, such as Poland and Germany, since the collapse of the Soviet Union.

 

A famous example is the campaign against the slave trade in England. William Wilberforce mounted a nearly 50-year effort between 1787 and 1833 (most of that time as a member of Parliament) to abolish the slave trade throughout the British empire and, eventually, to emancipate the slaves. Throughout those long years, Wilberforce and his allies faced difficult ethical questions regarding the most effective way to end slavery and the slave trade. Should they first campaign against slavery, or the slave trade, or both? Periodically, they addressed parliamentary bills that would regulate the slave trade without prohibiting it or would regulate the trade without regulating slavery itself.

 

In seeking to overturn or limit unjust laws and conditions, what moral obligations do political leaders, like Wilberforce, have in deciding which goals to seek and which means (strategies and tactics) to pursue? Must they exclusively pursue the "perfectly just" in law? Was Wilberforce morally obliged to support only legislation that would completely prohibit slavery outright? Could he -- as a means to the ultimate goal of abolition -- propose legislation that would limit the evil (e.g., by regulating it) without prohibiting it outright? What about those who assisted Wilberforce's campaign: citizens, lawyers, activists, and aides? What moral obligations did they have in deciding such strategic and tactical questions? After a long fight, Wilberforce and his allies were successful: Parliament abolished the slave trade on March 25, 1807 and emancipated the slaves on July 26, 1833.

 

Some political commentators argue that "any proposal permitting or tolerating abortion" --  what some have called imperfect or incremental legislation -- is "intrinsically unjust."1 This claim disregards the long tradition of classical prudence developed by Aristotle and continued in the writings of Thomas Aquinas and Edmund Burke, among others. Classical prudence takes account of limitations in a world of constraints and strives to achieve that greatest measure of justice possible under the particular circumstances. It is not possible to say that "any proposal permitting or tolerating abortion is intrinsically unjust" without considering specific intent of the legislators, the particular language of the law and -- perhaps most importantly --  the existing institutional, legal, social, and political constraints. While it is not possible to say, in the abstract, that any law permitting abortion is intrinsically unjust, such a law may be prudent or imprudent in the particular circumstances.

 

The Tradition of Prudential Moral Reasoning

 

In common parlance, this issue is usually framed as "accepting half a loaf" or being "willing to compromise" or "accepting the lesser evil." Likewise, "incrementalism" has typically been used over the years to refer to somewhat less than perfect legislation. This term is not very descriptive (although its Latin source means "to increase") because it refers to a small step or increase, without regard to the how or why of the step or whether it is part of a larger vision or strategy. Because these colloquialisms are ethically imprecise, they are inadequate to help political leaders or activists deal with difficult strategic questions. A more thorough ethical analysis is needed.

 

In philosophical terms, this dilemma is typically framed as a problem of avoiding participation or cooperation in evil actions or laws. But this incorporation of a concept applicable to personal moral probity may provide inadequate moral guidance to citizens or public officials without first considering the broader perspective of prudential moral reasoning and the contingencies of political decision making.

 

In his 1995 encyclical, Evangelium Vitae, Pope John Paul II explains why limiting unjust laws and their evil effects does not involve illicit cooperation:

 

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 . . . When it is not possible to overturn or completely abrogate a pro-abortion law, 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.2

 

This ethical statement has been viewed by some as a new innovation, and debate has ensued over the details of the statement and how strictly or broadly to construe it. This statement rests on a rich prudential tradition going back at least as far as Aristotle. That tradition gives a wider context to debates over the details of this statement and to the general question of avoiding participation in evil acts. Understanding the prudential tradition is necessary to discern differences between the individual's and the public official's capacity and responsibility to avoid cooperation.

 

Evaluating Moral Judgments: Four Questions to Ask

 

This ethical tradition, focusing on the central element of prudence in political action, goes back to Aristotle's Ethics. In this tradition, prudence assumes moral ends consistent with the moral and natural law, and seeks wisdom in pursuing those ends, recognizing contingencies and obstacles to those ends. Prudential analysis recognizes the limits of what politics can achieve in a world of constraints and emphasizes practical reasoning about contingencies and about the obstacles to achieving the greatest measure of justice (the good) possible in a world of constraints. Prudence recognizes the different spheres of responsibility of the individual and the statesman charged with the responsibility for public order and justice. The personal obligations (and abilities) of the individual to resist personal moral violations are different from the obligations (and abilities) of the statesman to maintain public order and justice.3

 

The element of practical wisdom is critical. As soon as consideration is given to what to do about an unjust condition or law, practical wisdom is necessarily invoked because practical wisdom has to do with action. Aristotle said that practical wisdom is "the capacity of deliberating well about what is good and advantageous" and "calculating well with respect to some worthwhile end."4 Practical wisdom is concerned with what is possible because "no one deliberates about things that cannot be other than they are or about actions that he cannot possibly perform."5 Thus, deliberating about ends and means is basic to ethical decision making. As the Aristotelian scholar, Harry Jaffa, put it, "it is the essence of practical wisdom to adapt its judgments to differences in circumstances. The purpose of practical wisdom is always the same and the wise statesman will act to achieve the greatest measure of justice that the world in which he is acting admits."6

 

Drawing on this prudential tradition, Jaffa summarized the elements of prudential reasoning for statesmen in Crisis of the House Divided, his classic Aristotelian analysis of the Lincoln-Douglas debates of 1858. The problem of applying the moral judgment of history to a statesman requires a fourfold criterion:

Jaffa's summary of prudential moral reasoning focuses on:

Objections to Prudential But Imperfect Legislation

 

The first objection to imperfect legislation is that it involves illicit cooperation in evil. The answer to this objection requires a careful evaluation of (1) the practical constraints that legislators face working within a group and (2) the different intent of legislators when faced with limiting an unjust existing law or bill.

 

Promoting or voting for legislation (or bill or amendment) intended to limit unjust laws or conditions is not a question of illicit cooperation, formal or material.8 Germain Grisez provides the following explanation:

The classical problem of cooperation arises where people acting together are not really doing the same (moral) act, even though they are cooperating in the same (external) behavior . . .  The relevant question here is: What is one willing? When one person cooperates in another's immoral action, the morality of the cooperator's deeds depends on his or her will . . .  By formal cooperation, one person makes someone else's immoral action his or her own. A nurse formally cooperates with an abortion at which she is assisting if she wills it, wants it to happen, makes herself fully a party to it. But her action is material cooperation when she does things which help bring about the abortion without making the immoral act her own . . .  The difference is a matter . . . of voluntariness . . .  But even material cooperation can be morally wrong, just as it can be wrong freely to accept bad side effects. If material cooperation would be unfair or give bad example, or if one has a responsibility to testify to the truth by avoiding even this much association with evil -- then one should not cooperate materially.9

This analysis shows why seeking to limit evil laws or their evil effects does not involve illicit cooperation, formal or material. There is no cooperation of equals. And there is no free acceptance of bad side effects. What is willed is the key. The intent of the prudent legislator is to limit the evil effects as much as humanly possible. Confronting unjust laws necessarily requires contact or engagement, but it does not mean participation, much less cooperation, with evil. By "limiting the harm done" or "lessening the negative consequences," we do not admit or support the rest of the evil that we do not have the power (legal or political) to affect or remedy now.

 

In addition to cooperation, various other ethical objections have been raised against so-called imperfect legislation:

In his 2005 book, Changing Unjust Laws Justly, British author Colin Harte contends that "any proposal permitting or tolerating abortion is intrinsically unjust."11 While Harte raises good reasons why certain legislation might be imprudent, he does not successfully argue that all restrictive legislation is intrinsically unjust (i.e., unjust under all circumstances). Briefly, four flaws stand out. First, Thomas Aquinas and Catholic Church teaching use "permit" (as in legislation "permitting" abortion) in the narrower sense of "authorize." Harte extends the term "permit" in an unjustified way to condemn any law or bill that leaves any abortion unprohibited. Second, Harte misinterprets "intrinsically unjust" as that term is used in §22 of the 1974 Declaration on Procured Abortion and the 1995 encyclical, Evangelium Vitae 73.12 Evangelium Vitae's reference to a permissive law refers to a law that "admit[s] in principle the liceity of abortion" in the words of §22 of the 1974 Declaration. Third, Harte focuses on the specific words of restrictive legislation, in isolation from context and from their impact or effect. Context is critical because it requires a comparison between existing law and any new bill or amendment. John Paul II in Evangelium Vitae 73 compares a "more restrictive law" with a "more permissive law." Fourth, Harte treats the action of any legislature as one action of one group, without recognizing the conflicting intent of individual legislators or a minority of legislators.13

 

It is not immoral to be prudent. A political leader or activist must have a healthy respect for constraints in the fallen world and an acute insight into their nature and effect. Even if a prudential framework is accepted for political decision-making -- and assuming no cooperation in an evil act is involved -- difficult strategic and tactical questions remain as a challenge to the conscientious statesman. He/she must evaluate the four questions posed by Jaffa: worthy goals, wise judgment as to what is possible, choosing effective means, and avoiding future preclusion of improvements. Political leaders must guard against being lured into cooperation and must keep the goal in mind and not get lost in the details of the means. Prudent political leaders must pursue a vision of complete justice -- of complete legal protection for all human life. But, in the democratic process, they must pursue the ideal in such a way that progress is made and with the willingness to accept something when all is not achievable due to social, legal, or political obstacles beyond their control.

 

Endnotes

1. See generally, Colin Harte, Changing Unjust Laws Justly (2005).

 

2. Pope John Paul II, The Gospel of Life (Evangelium Vitae) para. 73, pp. 134-35 (Times Books ed. 1995) (emphasis in original).

 

3. Prudence, in this tradition, is not mere self-interest or advantage, as some modern philosophers construe it. See e.g., David Gauthier, "Morality and Advantage," reprinted in Steven M. Cahn & Joram G. Haber, 20th Century Ethical Theory 437 (1995).

 

4. Aristotle, Nicomachean Ethics Bk VI, p.152 (M. Ostwald trans. 1962).

 

5. Id.

 

6. Harry V. Jaffa, Crisis of the House Divided: An Interpretation of the Issues in the Lincoln-Douglas Debates 346 (1958).

 

7. Id. at 370.

 

8. Germain Grisez & Russell Shaw, Fulfillment in Christ: A Summary of Christian Moral Principles 146-48 (1991).

 

9. Id. at 147.

 

10. Id. at 60.

 

11. Harte, supra. Numerous Catholic Church leaders and scholars have rejected Harte's conclusions, by implication, and affirmed the morality of "imperfect legislation," at least under certain circumstances. See John Paul II, Evangelium Vitae §73 (1995); Cardinal Joseph Ratzinger, Comments on the Hatch Amendment (1982); Statement of Italian Conference of Bishops On Modification of Law 194/78 (Feb 11, 1981); Catholic Bishops of England, Wales, Scotland, Ireland Joint Committee on Bioethical Issues, "Imperfect Laws: Some Guidelines," in Briefing (July 7, 1989); Archbishop Tarcisio Bertone, Sec. of the Cong. Doc. Faith, "Catholics and pluralistic society: 'imperfect laws and the responsibility of legislators'" (2001), in Correa and Sgreccia, Evangelium Vitae: Five Years of Confrontation; Cong. Doc Faith, "Symposium: Catholics and the Pluralistic Society: The Case of 'Imperfect Laws'" (Rome, Nov 9-12, 1994), proceedings published in Italian; Joseph Joblin & Real Tremblay, eds., I Cattolici e la Societa Pluralista (Bologna: Edizioni Studio Domenicano 1996); Bishop John Myers, "The Obligations of Catholics and the Rights of Unborn Children," 20 Origins 70 (June 14, 1990); John Cardinal O'Connor, Abortion: Questions and Answers (July 1990); Peter Bristow, The Moral Dignity of Man (1997); John Finnis, "Restricting Legalised abortion is not Intrinsically Unjust," in Helen Watt ed., Cooperation, Complicity and Conscience (2005); John Finnis, "Helping Enact Unjust Laws Without Complicity in Injustice," 49 Amer. J. Juris. 11 (2004); John Finnis, "The Catholic Church and Public Policy Debates in Western Liberal Societies: The Basis and Limits of Intellectual Engagement," in Luke Gormally, ed., Issues for A Catholic Bioethic (1999); John Finnis, "Unjust Laws in a Democratic Society: Some Philosophical and Theological Reflections," 71 N.D. Law Review 595 (1996); Anthony Fisher, O.P., "On the duties of a Catholic Politician with Respect to Abortion Law Reform, with Particular Reference to Evangelium Vitae 73" (1998), available at: http://www.priestsforlife.org/articles/imperflefisher.html; Robert George, "Political Action and Legal Reform in Evangelium Vitae," available at: http://www.nccbuscc.org/prolife/programs/rlp/96rlpgeo.shtml; Robert George & Gomez-Lobo, "Personal Statement of Professor George and Dr. Gómez-Lobo," in President's Council On Bioethics, Reproduction and Responsibility 243-44 (March 2004) available at http://www.bioethics.gov/reports/reproductionandresponsibility/appendix.html#statement7; Angel Rodriguez Luno, Professor of Moral Theology, Pontifical University of the Holy Cross, Evangelium Vitae 73: the Catholic lawmaker and the problem of a seriously unjust law (September 18, 2002); L'Osservatore Romano Luno, "The Dilemma of Catholic Legislators Faced with Proposals Seeking to Ameliorate Unjust Laws Promoting Artificial Procreation," paper to Tenth General Assembly of the Pontifical Academy for Life (Feb 21, 2004); William E. May, "Unjust Laws and Catholic Citizens: Opposition, Cooperation, and Toleration," Homiletic and Pastoral Review 12 (Nov. 1995).

 

12. As John Finnis points out, "'Intrinsically unjust' replaces the term 'intrinsically immoral' predicated of such laws in [section 22 of] the Declaration on Procured Abortion made by the Congregation for the Doctrine of the Faith in November 1974. Neither term, as predicated of a kind of law, is traditional . . . " John Finnis, "Helping Enact Unjust Laws Without Complicity in Injustice," supra, at 13 n.6.

 

13 Oxford University Law Professor John Finnis has thoroughly critiqued Harte's position in a number of essays. See, e.g., Finnis, "Helping Enact Unjust Laws Without Complicity in Injustice," supra; Finnis, "The Catholic Church and public policy debates in Western liberal societies: the basic and limits of intellectual engagement," supra; Finnis, "Unjust Laws in a Democratic Society: Some Philosophical and Theological Reflections," supra.