The Legal Positivism of the Pro-Life Movement

St. Thomas Aquinas states in his Summa that there are four integral parts of any law. These are 1) accordance with reason, 2) benefit to the objective common good, and 3) promulgation 4) by a rightful authority who has legitimate care for the community in question. Without any one of these parts, a “law” is no law at all, and is really nothing more than a weightless demand. For example, if a government suddenly declared that murder was legal, that declaration would have no authority over any citizen. It would not really be a law, because it is not in accord with reason and is detrimental to the common good of the community. It could not alter the reality that murder is intrinsically wrong.

But why talk in hypotheticals? Roe v. Wade was just such a so-called “law:” it made the murder of babies “legal.” It does not meet the requirements of Aquinas’s definition (it is not in accord with reason and does not benefit the common good), and therefore does not have the authority of a law. But conservative Americans have sought to overturn of Roe v. Wade through the legislature for years. Why have we been appealing to the legislature to change something that has no real legal authority? It is because we have bought off on common misuse of the term “law.”

Since the problem I’m referring to is a misunderstanding of a definition, I’m going to pause here to define my terms. The problem is legal positivism, which is a form of nominalism that considers laws as deriving their validity simply from their having been legislated (without any regard for whether they ought to have been legislated).

This stands in stark contrast to the Catholic tradition, which recognizes that human laws are valid only insofar as they conform to the natural and divine laws. Rather than seeing laws as recognitions of the particularities of the natural law, legal positivists see human law as something that can be made or unmade arbitrarily, as if out of thin air. This view is culturally prevalent in the U.S. as is indicated by the fact that both liberals and conservatives, at least implicitly, recognize Roe v. Wade as having had the force of law.

Conservative Americans have been using their pro-life stance as an indicator of their righteousness for far too long. Finding the murder of innocent babies wrong doesn’t actually say much about your character other than that you’re possibly a decent, more-or-less sane human being. It’s become the conservative/Christian right-wing form of virtue signaling, masking the fact that we’re all legal positivists here in America, across both the Left and the Right. For abortion isn’t the central issue of the Roe v. Wade story. It’s a deadly consequence of the true problem at the heart of the baby-murdering debate: the false belief that laws shape reality rather than the other way around. This kind of legal positivism is the reason that Roe v. Wade could have ever been decided in the first place, and its inculcation among even pro-life Americans has left them defenseless against such “legislation.”

Case in point: across the country, conservatives have recently been celebrating the fact that Roe v. Wade was “overturned.” What they’re missing is that because there was no justification for Roe v. Wade’s legality in the first place, there was actually nothing there to be overturned—only the false belief that Roe v. Wade provided any real authorization of abortion.

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