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Arguments Against Abortion Law Essay

Introduction While some countries have legalized abortion, some have upheld the prohibition of such medical services. Modern society is divided between two major stances on abortion: pro-choice and pro-life. Some claim that forbidding abortion infringes upon a woman’s right to her own body while others argue that abortion is murder and should be illegal. As governments establish laws dictating the legal status of abortion, the issue is not simply whether or not abortion is right but rather whether or not law can govern such a matter as abortion.

St. Thomas Aquinas writes in Question 96 Articles 2 and 3 of his Treatise on Law that human law is limited by its end, its authority, and its subjects. Law, in general, must be ordered to the common good. Particularly, when men apply reason to the natural law in order to create human law, these men must bear the common good in mind. In addition, human law cannot govern men in matters that surpass human capacities. For example, human law governs actions, not thoughts and not spiritual matters. Lastly, human laws must be proportional to the nature of man.

Under such limits, human law can command every virtuous action but cannot forbid every single vice. The vices which human law can forbid are the worst and most extreme vices which most men would refrain from partaking in, including murder. In direct abortion, the life of the fetus is deliberately and directly terminated. In indirect abortions, the termination of fetal life is not an intended result, but the fetus still dies. Since the fetus is alive at the moment of conception, both forms of abortion are killings although not all are necessarily homicides.

According to Aquinas, the circumstances of such actions would determine whether or not any form of killing should be classified as a murder. If considered murder, abortion is punishable by human law. However, in instances where the abortion is not considered a murder, human law does not have the authority to punish it. Aquinas defines law as an order of reason directed towards the preservation of the common good. Laws are placed to achieve justice, and this includes an obligation to preserve the common good and to punish those who act contrary to the common good.

While Aquinas does not specifically talk about abortion, he does mention that certain instances of murder are punishable by human laws. Therefore, as abortion is usually murder and murder is contrary to the common good, human law has a right and an obligation to punish it. Although not every case will have similar circumstances, there should be a general law in which abortion is always punishable. However, that law should be kept general so as to lend room for prudential judgment on a case-by-case basis.

In order to prove the role of human law in punishing abortion, one must first understand law in general. The Essential Characteristics of Law The role of human law in punishing abortion cannot be understood without first knowing what is lawfully punishable by human laws. As understanding what defines a law is essential to understanding what is lawfully punishable, one must examine what characteristics constitute a law. All men generally understand that law is intimately connected with justice. Thus the laws which are true must be just.

As justice renders to each his due, the four defining characteristics of true law require a pursuance towards the common good which is not only known through reason but also made and promulgated by an authority of the governed community. The first two characteristics concern law itself. Firstly, law emanates from reason. Law intrinsically has the power to command and forbid its subjects to action or inaction. It is a source of action just as reason itself is a source of action. Reason itself is the rule and measure which is the source of all actions, so law belongs to reason.

Secondly, aw must be ordered to the common good. As St. Thomas Aquinas notes in the second article of Question 90 in his Summa Theologica, men “chiefly call something law because it orders things to the common good” (Regan, 13). Understanding law means understanding that all law is ordered to the common good. Since law belongs to reason, it must also be concerned with the same end as reason. Reason alone moves men to act for their own happiness. As every part is itself related to a whole, each individual must take part in his or her community in order to contribute the commonwealth of the community.

Consequently, law does order individuals to act virtuously because that would contribute to the common good of society. Thus law, since it is created to govern a community of beings, must be ordered to the common good which entails ordering the individual goods of its subjects. The latter two characteristics of law are concerned with the maker and execution of law. The third characteristic mandates that the author of the law be a public authority. Aquinas argues that the people should make laws since “ordering things to ends belongs to those to whom the ends belong” (Regan, 14).

However, it is impractical to extend the power of making laws to the whole community. Making laws would become a longer process because one would need to take every individual’s opinion into account. Thus, public authorities, who have the power to act for the common good of the community which they rule, should be the makers of law. Law commands a certain way of life that public authorities have the power to induce. Lastly, all laws must be promulgated, for without promulgation, law would not fulfill its purpose. In order for any law to be able to fulfill its innate power of commanding and forbidding, it must be applied to its subjects.

Through promulgation, laws are made known and thus applied to its subjects. The promulgation of law consequently allows for law to fulfill its power. A law that does not express these characteristics is not truly a law, but rather, a perversion of it. Thus, these four characteristics together constitute Aquinas’ definition of law as “an order of reason for the common good by one who has care of the community, and promulgated” (Regan, 15). As the end of law is itself the common good which entails the good of its members, all laws must also command the good of its subjects.

Thus the ultimate purpose of all laws, including human laws, is to command good and forbid evil as it relates to the common good of its subjects. The Forms of Law However, as the common good is dependent on its subjects, law exists in different forms which are distinguished by the ruler, subjects, and specific ends. Each form demands a certain degree of justice over its subjects. Thus one must examine the different degrees of justice that each form of law can rightfully demand in order to see how human laws must punish abortion. Although natural and human law do not demand perfect justice, they are reflections of eternal law.

Divine law, however, exacts the perfect justice that the eternal law demands of men. The eternal law can be described as the laws that govern the whole universe. God’s perfect reason and providence rules the universe and all its beings. Like Aquinas says, “the plan of governance of the world existing in God as the ruler of the universe has the nature of law” in that the four characteristics are present (Regan, 16). God uses His perfect reason to rule over all things in the universe and orders each subject to his own good. His perfect reason is perfect law, and thus the eternal law requires perfect justice.

Perfect justice commands all good and forbids all evil. This same demand of perfect justice is reflected in divine law as well, for divine law is a reflection and promulgation of eternal law that orders all men to their ends which they come to know through revelations (Regan, 21). Whereas eternal law demands perfect justice of all creation, divine law demands perfect justice of all men. It exacts the justice that both human law and natural law fail to command. Unlike the divine and eternal law, natural law does not demand perfect justice, for the subjects of natural law cannot fully understand God’s perfect reason.

Natural law, although it does not demand perfect justice, is a reflection of the eternal and divine law as appropriate to the nature of its subjects. It is demonstrated through rational creatures who operate on their own reason and will in accordance with nature under the governance of eternal law. All rational creatures hold knowledge of the natural law because it is bestowed in their minds by God. Natural law, because it rules rational creatures, is based on the self-evident principles of practical reason to order ist subjects to their ends.

As the first principle of practical reason is the nature of seeking good, “the first precept of natural law is that we should do and seek good, and shun evil” (Regan, 43). The precepts of natural law also reflect the rational creature’s natural inclinations. As all living things naturally seek to remain alive, the preservation of life and the production and upbringing of offspring are precepts of the natural law. Furthermore, man, by nature of being a rational creature, seeks to pursue truths about God and to live in society with others.

This list of natural law’s precepts is not exhaustive, but, like the ones listed, all precepts of natural law relate to the natural inclinations of rational creatures (Regan, 43). The forms of law include the eternal law, the divine law, and the natural law. The latter two are reflections of eternal law but differ in their ruler, subjects, and specific ends. While eternal and divine law both demand perfect justice, natural law does not. Natural law governs imperfect, rational creatures who are ordered to their natural inclinations.

Men are also governed by natural law, but when men apply their own reason to the precepts of natural law, human law is formed. Human laws should exhibit the same defining four characteristics of law, as well. Therefore, since different forms of law exist which require different degrees of justice, human laws cannot rightfully govern every single matter. Human Law and Its Limits Although all law requires the aforementioned four characteristics, human law is more limited in the matters that it an legitimately regulate because it can’t practically bring about every effect that would be reasonable to pursue.

Still, human laws do have a role in punishing abortion because it relates to a vice which must be punished. Men direct the precepts of natural law to particular matters in order to establish human law. Human law is the particular application of the natural law, and consequently, human laws only govern a limited amount of matters because the governance of other matters “surpasses [the laws’] proportional human capacity” (Regan, 21). Human law is limited in its authority by its end and its subjects.

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