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Published online by Cambridge University Press: 24 April 2015
May a conscientious citizen reasonably seek to have the law reflect his or her moral convictions? My answer is that there are circumstances under which such efforts are reasonable, and cannot be meaningfully challenged except by substantive moral criticism of the moral views in question. However, there are many areas of life in which a morally earnest citizen must not seek to impose his or her morality, but must, instead, respect the fact that a morally defensible legal system should leave room for wide discretion on the part of the individual exercising moral judgment.
To establish these conclusions it is necessary to clarify some aspects of the general relationship between morality and law. In particular, it is necessary to establish the primacy of the moral point of view, for the question about what is reasonable in these areas is fundamentally a moral question.
1. See Finnis, J., Natural Law and Natural Rights 100–133 (1980)Google Scholar.
2. Different versions of this thesis are held by Lord Devlin and H.L.A. Hart. For a useful summary and contrast of these positions, see Mitchel, B., Law, Morality and Religion in a Secular Society 18–35 (1967)Google Scholar.
3. Hart's account of “universal values” is in The Concept of Law 188 (1961)Google ScholarPubMed.
4. For an account of this normative view of consent, see Grisez, G. and Boyle, J. Jr., Life and Death with Liberty and Justice: A Contribution to the Euthanasia Debate 25–34 (1979)Google Scholar.
5. On the assumption of the gaplessness of legal systems, see Finnis, supra note 1 at 269, 292.
6. For a discussion of how the decisions of authorities come to have moral force, see Id. at 231-259, 281-290.
7. Id. at 100-133; Grisez and Boyle, supra note 4 at 337-346.
8. This formulation is based on Vatican Council II, Pastoral Constitution on The Church in the Modern World (Gaudium et Spes), paragraph 16.
9. Finnis, supra note 1 at 155.
10. This is the central normative disagreement between Finnis and Grisez and myself. See Finnis id. at 210-218 and Grisez and Boyle, supra note 4 at 34-50, 449-463.
11. This conception of religious liberty is based on Vatican Council II, Declaration on Religious Liberty (Dignitatis Humanea) especially paragraph 2. The focus of the document is on legal prohibition of free religious exercise—thus it deals directly with an instance of case 6. The emphasis in the reasoning of this document—on the duties of individuals to seek the truth and the wrongness of coercive prevention—justifies extending the teaching to other areas of life than the specifically religious, and to the general proposition that there is a sphere of liberty in which governmental coercion has no proper place.
12. This is not to deny that individuals' sexual behavior and other private behavior can have a profound impact on their functioning as citizens. Nevertheless, the connection between proper sexual integration and good citizenship is remote in various ways, and the importance and character of proper sexual integration are morally controversial. Legal enforcement of some degree of sexual integration seems to me, therefore, to be an infringement of liberty.
13. See Grisez and Boyle, supra note 4 at 121-138.
14. Id. at 139-183.