Because we live in a world of constraints, prudence tells us that if we cannot prohibit a social evil entirely, we can limit it through appropriate fences. Building fences around a social evil, as part of a larger strategy to secure justice, precludes what can be prohibited now without admitting the legitimacy of what remains unprohibited. By limiting the harm done or lessening the negative consequences, we do not admit or support the rest of the evil that we do not have the power (legal or political) to touch now.
Assuming due consideration of counsel and deliberation in identifying the good, and understanding the opportunities and constraints in the concrete political conditions, lawmakers may prudently seek to establish legal fences around legal and social evils through laws that cannot, due to political and legal obstacles beyond their control, completely prohibit the evil. Court edicts or political majorities may impose limitations (exceptions) in the law due to legal, constitutional, or political obstacles beyond control.
A legal fence does not admit the legitimacy of what remains unprohibited when the limitation is not caused by our will but is compelled by countervailing obstacles beyond our control. What prevents the achievement of the complete good are those obstacles—human, institutional, political, social, cultural—not the will or desire of the conscientious lawmaker. This is precisely why wise judgment as to what is possible is so important for prudence. And that requires a deep understanding of both the obstacles and the range of possible solutions.
It is important to realize the dynamic quality of legal fences around a social evil when prohibition is not possible. They are not simply inert; they can be provocative. This can be seen in the Southern response to the Whig-Republican line against slavery in the Western territories. The Whig-Republican fence was enough to spark secession after Lincoln’s election in November 1860. And it can be seen in the abortion advocates’ response to the partial-birth abortion debate in the United States between 1995 and 2007. In both cases the legal fence was a moral affront to the proponents of the established institution. Particular legal fences must always be viewed and devised in the context of the broader campaign to eliminate the injustice entirely, as circumstances make that a realistic possibility.
Opposition to legislative fences that contain but do not entirely prohibit a social evil sometimes rests on a misunderstanding of the concrete situation, the intent of the sponsors of the fences, or existing law or existing constraints. But more often it is a failure to understand the very nature of legislation. The single legislator, or a minority of legislators, is not responsible for what the majority supports or a court dictates. The minority does not “participate” in what the majority supports or a court dictates. No one cooperates in evil if they do not participate in the evil, and lawmakers can avoid participating in unjust laws or conditions by putting legal fences around unjust laws and conditions. No one compromises without making a concession, and fighting for the greatest good possible, when obstacles prevent achieving more, is not a concession.
Given the frequent possibility for misunderstanding by citizens who are outside the legislative arena, unfamiliar with the legislative process or confused by critics as to the lawmakers’ intent and action, conscientious lawmakers should seek to clearly communicate to the public (including fellow legislators, constituents and supporters) their goal of complete justice, the constraints that exist and how the constraints limited that which they can achieve. Thus public education is also essential for political prudence. To secure those fences, lawmakers may have to vote for a final bill that contains their fence(s) as a part thereof. Their stated aim should be to preserve the fence, with the realization that their vote is not needed to maintain the evil that the majority retains, and that their abstention would prevent the effective establishment of the fence. This is the essence of political prudence as it has been understood and endorsed by moral philosophers and religious leaders since Aristotle.
This is not a plea for taking incremental steps regardless of existing obstacles, conditions or opportunities. This is not a plea for what Dr. Martin Luther King Jr. derided as “the tranquilizing drug of gradualism.” Quite the opposite. It is intended to achieve as much good as current obstacles will allow, while leaving open the chance for making progress (achieving a greater good) in the future.
Certainly, political leaders must guard against being lured into cooperation or complicity. Prudence is needed to guide judgments about cooperation in evil. This is one of the most difficult challenges. To avoid cooperation or complicity, political leaders must keep the end in mind and not get lost in the details of the means. They need to ask, What is the true end here? What are we aiding or assisting? What would happen without our involvement?
Prudent political leaders must pursue a vision of complete justice, of complete legal protection for human life. But in the democratic process they may pursue the ideal in such a way that progress is made and with the willingness to accept “something” when “all” is not achievable because of social, legal or political obstacles beyond their control.
This is particularly difficult when no effective public-policy strategy can be implemented without successfully articulating the goals of a bioethical public policy widely shared by Americans, including many who share no particular religious faith. It is necessary to Americanize the public debate by connecting the purposes of contemporary legislation to enduring themes in American history. Any effective bioethical policy must be explained effectively to secularists, utilitarians and postmoderns. And the essential elements of that must go beyond utilitarianism and engage contemporary uncertainty about the self, human nature, and authority. Bridging this cultural and rhetorical divide to mobilize a democratic majority in a republic is the challenge of prudent rhetoric.
Editor's note: This essay is an excerpt from his Politics for the Greatest Good: The Case for Prudence in the Public Square (InterVarsity Press, 2009) which grew out of Mr. Forsythe’s thesis for the MA in Bioethics at Trinity International University. This excerpt is used by permission.
