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Legal vs. Moral

Gregory Koukl
Sunday, February 19, 1995

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Let me begin by telling you a little about a piece from the L.A. Times last Friday, February 17. It's entitled "War Against a Woman's Right." Obviously, it is about abortion because women's rights now pretty much focus on the issue of abortion. This is an editorial piece that reflects on some recent fires at abortion clinics. It makes a couple of comments.

Of course, it condemns the violence, and I've mentioned many times here that I condemn the violence, as well. But there is something else going on in this article that is worth noticing. I want you to notice the way the Times is arguing here, specifically how it treats the issue of rights. In fact, the word "right" is part of the title: "War Against a Woman's Right." After talking a bit about the fires in these clinics that cause tremendous damage, though no loss of life, it says this, "Such violence against facilities that perform legal abortions is inexcusable."

I pause here, folks, because I want to emphasize the use of the word, legal abortions.

Let me continue. "Fear of violence prompted one San Luis Obispo obstetrician to stop performing abortions some years ago." It goes on and talks about how now "only 12% of obstetric residency programs train doctors for first trimester abortions, which is a reduction from 1976." I think that is a good sign. They think it is a bad one. "As a result, abortions are increasingly unavailable to American women, and this is why the Accreditation Council for Graduate Medical Education is going to require schools to teach abortion."

This is strange. Why would they require such a thing? Abortion is an elective procedure. It is not health care. I guess one could say it is like fixing a hare-lip or something, in one sense. I am not reducing the moral consequence of abortion to fixing a hare-lip, I'm just simply saying that from a medical standpoint it is elective. It is not directly related to health care, so it would not seem to be the most important thing on the agenda of medical schools, which have their hands full teaching things that do relate to health care. It strikes me that there is a little bit of politicizing going on here. There is an agenda going on. In any event, that's not my main point.

The article ends on this thought, "American women have the right to choose abortion. Violence and fear must not be allowed to render that right meaningless." My reflections here are about the nature of rights. The way that the L.A. Times is arguing is really quite simple. They say abortion is legal, therefore a woman has a right to such a thing; and since it is legal and it is a right, then no one else is justified in attempting to restrict this action. Do you follow that? They have a right because it's legal, is the point. This kind of argumentation is used, oftentimes, to substantiate abortion and to condemn attacks and attempts to restrict abortion. After all, this is a legal procedure. There is a subtle type of argumentation here that basically is saying that if it is legal, it is moral; and if it is legal and moral, then it is immoral to oppose it.

Do you see the subtle equation here of morality with law? Morality is reduced to law. That's why the appeal to the fact that it is legal is considered adequate to silence the opposition. People toss around rights language all the time. It's often fun when I confront someone who makes a rights claim to simply ask the person, what is a right, anyway? People are plucking rights out of the sky like they grow on celestial trees, but when you ask the question, what is a right, people are hard-pressed to give you an answer.

...if we want to argue that man's law is somehow a violation of fundamental human rights, we have to appeal to a higher standard.

I understand sometimes people can't put into words what they know to be true, but I don't think that is the case here. I think people have a general idea that they deserve--that is what the right happens to be--but they can't take it any further than that. I'll tell you what a right is. A right is a just claim to something. When someone says they deserve something in this regard, that they have a just claim to something, the focus is on the concept "just." In other words, it is appropriate that they make the particular claim that they do. Such a thing is an appeal to some kind of a standard, a kind of a legal standard of sorts. That's why the word "just" is in there. There is some standard that one is making an appeal to.

There are two ways that a thing can be a just claim. One could be government law. You have a just claim to get a driver's license at the age of 16 in this state, so if you pass the requirements but are denied such a thing for some frivolous reason, it is appropriate for you to say that your rights have been violated. Why? You have a just claim to that driver's license because the law has established the conditions under which you can make the claim. You have satisfied the conditions and therefore you can make the claim.

There is another way you can make such a claim. That is by appealing to a law that is higher than the government's law. This is called natural law, or one might say, God's law, if you were inclined to put it in those terms. It really amounts to the same thing. This is the kind of appeal that people make when something the government is doing is clearly wrong. They appeal to a higher law, a transcendent source of rights. They say even the government has got to bow to a higher law. If you argue based on transcendent rights, in other words, a right that is above human law such that human law cannot justify a violation of it because human law is lower than this higher thing, you must always argue on the basis of some kind of transcendent rule to counter government rights.

There has been a serious perversion in this understanding of rights which has removed the notion of higher law altogether. This makes rights claims a bit bizarre and obscure.

Now, it stands to reason that man's law is subordinate to God's law, so if we want to argue that man's law is somehow a violation of fundamental human rights, we have to appeal to a higher standard. We have to say that man's law is violating God's law and God's law is the higher standard.

This is exactly what happened in the Declaration of Independence. They said that there comes a time when a government exceeds its bounds and limits and violates the laws of God, then it is right for men to rebel against it. Then there is this profound statement: "We hold these truths to be self-evident; that all men are created equal. That each man is endowed by his creator with certain unalienable rights." See the appeal to the higher rights? The rights language there appeals to a higher law, "...that is, life, liberty and the pursuit of happiness." In other words, all rights based on human law must take a second position to the rights of transcendent moral law referred to in the Declaration as "the laws of nature and of nature's God." That's their wording, not mine.

If you think back to the Dred Scott decision in 1857, that decision was immoral because it actually reversed the natural order. Judge Taney ruled that rights of a slave owner over his slave were more primary than the right of a human being to his life, liberty and pursuit of happiness. That was topsy-turvey.

What about abortion rights? This article in the Times talks about abortion rights. What kind of a right is an abortion right? Is abortion a transcendent right or is it a right given by government? It is the second type. It is the type given by government. Abortion is a right that human law has opted to create, it has decided by convention to give it. If human law gives a right, it can take it away. It can decide by the same convention to take that right away. Abortion is not even a right the Constitution gives; it's a right that nine men gave in 1973. Either way, it is still man's law. The point is, the right to an abortion is a right but it is a man-made right, it is not a God-given right.

What's kind of funny here is that it is curious that those who argue for abortion act like it would be immoral for the law to be changed. They say things like, you can't change the law, we have a right. That is confused because the point is that the law gives you the right and the law can be changed. The right can be taken away. The only way that that kind of argument would really obtain against a man-made law is if there is a higher law that secured the right, so it would be immoral to change man's law to violate the higher law. But where is the higher law that says you have a transcendent right to take the life of the unborn child? It is not there.

Abortion is a right that only exists because of law, like the right to drive a car if you are properly licensed. It could be suspended or completely abolished. When the law changes, the right disappears. That's the nature of rights that find their foundation merely in human law.

Today the distinction between these two categories has been severely blurred. There is a kind of relativism that has taken root that completely clouds the picture. I called it "society says relativism." It's got a formal name. It's called normative ethical relativism or conventionalism. But basically it's the view that since there is no transcendent code, no absolutes, each person ought to act in keeping with his society's code. What's right for one society isn't necessarily right for another society. In other words, you do whatever your society says to do, and that is why I call it "society says relativism."

What is legal isn't always moral.

Here is what is important about this. The objection against abortion is based on the notion of transcendent human rights. I will agree that since abortion is legal a woman receives a legal right to have an abortion. But just because it is legal (now, listen carefully) it doesn't mean it is moral. There is a difference between being legal and being moral.

There were lots of things that were legal in the past. Apartheid was legal in South Africa, but it wasn't moral. It was a violation of a transcendent human rights and ought to have been abolished. The same thing applies to the institution of slavery in this country. Civil rights in the 1960's--exactly the same thing. There was a rebellion by moral reformers against the status quo, because they said the status quo, though legal, was immoral.

Can you see how it wouldn't have done any good during the time of civil rights to say that segregation is legal, so shut up? The issue wasn't whether it was legal or not. Clearly it was. The question is whether man's law was in violation of a higher more transcendent law that dealt with the issue of human dignity and human rights. Of course, the transcendent right in that circumstance prevailed.

You may disagree with my particular view on the abortion issue, but please understand what it is. My view is that the unborn child is a human being, therefore the rights of the Constitution accrue to that unborn child. Appealing to the law doesn't help. It misses the point entirely. What is legal isn't always moral. There is a legal right but it may be in violation of a transcendent right, and this is why we take exception. This is the argument pro-lifers are offering.

"Society says" relativism says that the law defines what is moral. Such a relativism implies that because man's law is the highest law and the Supreme Court is the highest level of man's law, then the highest moral court is the Supreme Court. Once the Supreme Court has spoken, discussion is over. That's the kind of belief, I think, that fuels the comments in the L.A. Times from Friday, "War Against a Woman's Right." This philosophy is at the heart of such comments as one person made who called in to the show, "When are you going to accept the fact that abortion on demand is the law of the land? You may not like it, but it is the law. And that settles it. Where do you get off challenging it?" Or comments like we just read in the Times : "Facilities that perform legal abortion" and "American women have the right to choose abortion."

Do you see how this view equates law with morality? If it is legal, it is moral. Such a view reduces morality to mere power, either the power of the government or the power of the majority. If you have the power to set the standards, then you can determine what is a right. Another way of putting that is, might makes right.

This is exactly the kind of argument that pro-lifers are concerned with and are trying to counter. They are offering an argument based not on man's law, but on a transcendent law just like the founders and the framers of the Constitution used to justify their cause. Just like those who fought slavery used to justify their cause. Just like those who fought for civil rights and against apartheid used to justify their cause. It is the same kind of argument. Now it may be that the argument is misapplied, but please understand what kind of argument it is. It is precisely the issue that pro-abortionists refuse to address or apparently even to recognize: the transcendent argument of human rights.

In this sense, it does no good to appeal to the Constitution as a defense of abortion. I have a Constitutional right to an abortion. Of course you do, at least under the present administration of law. No one contest that abortion is legal. You have a right from man's law. That's not my concern.

My concern is whether it's a moral alternative given a higher law, a law that transcends man's law, a law pertaining to self- evident and inalienable rights that all men are created equal. If all men are created equal, if what it says in our Declaration of Independence is true, then abortion cannot be held to be sound and moral because it is a man-made law that goes against God's higher law--the very thing that the Founders of this country argued in favor of--the notion of transcendent law. That's why articles like this one in the Times and those that appeal to man's law as justification in the abortion controversy miss the mark completely and they do so repeatedly.

 

This is a transcript of a commentary from the radio show "Stand to Reason," with Gregory Koukl. It is made available to you at no charge through the faithful giving of those who support Stand to Reason. Reproduction permitted for non-commercial use only.

1995 Gregory Koukl 1-800-2-REASON
Last Updated: March 22, 1996 webmaster@str.org

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