Letters

When laws go wrong; Ashes to ashes; Is the Pope a Catholic?; Bergoglio in Ireland; Inconvenient truth; Head in the sand; Wilshaw’s legacy Premium

04 January 2017

 

When laws go wrong
The demand by four cardinals for clarification of the Church’s law, and the Pope’s silence in response, bring to light two radically different conceptions of the relation of law to right.

On one view, which became orthodox in the Enlightenment, law is the source of right and wrong: what is right is what it prescribes, and what is wrong is what it forbids. The source of law itself is will: the will of God or the will of the people expressed in periodical elections of legislators. The other view is that actions are right or wrong independently of law, and laws prescribe what seems best on the whole while they are in force. Laws of their nature are general and admit of no exception, but, as Plato said, no law whatever can prescribe what is best for everyone at all times. Besides law, therefore, judges applying the law need something Aristotle called “reasonableness”, epieikeia, to rectify the law in any case where it goes wrong and decide what the law-giver would have decided if he had been there and known that particular case.

The Pope perhaps favours this ancient view, according to which clarifying laws cannot remedy the defects arising from their generality.





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