Cooperation with Evil & the Morality of Judging in Abortion Cases
In response to my post entitled Catholic Doctrine and the Obligations of
Judges in Abortion Cases: A Comment on the Pryor Nomination, I received the following comments from an anonymous reader, who (modestly) warns that they are "off the cuff,":
For what it's worth, I think that an appellate judge who, say, votes to uphold the validity of a general law authorizing elective abortions, or who votes to invalidate, on constitutional and precedential grounds, a law regulating or restricting abortions, does not "formally cooperate" with evil. As I understand it, formal cooperation occurs when a person or organization freely participates in the action(s) of a principal agent, or shares in the agent's intention, either for its own sake or as a means to some other goal. (Under this standard, it seems that a judge could even rule that a minor was sufficiently mature so as to not need to notify her parents, so long as the judge did not intend the evil result of the minor's choice.
The question of "material cooperation" is, I think, trickier. If I remember correctly, "immediate material cooperation" occurs when the cooperator participates in circumstances that are essential to the commission of an act, such that the act could not occur without this participation. And, immediate material cooperation in intrinsically evil actions is morally illicit. Here, it does not seem that the "cooperator" must share the wrongdoer's intent; the hard question (for me) is, when can it be said that "the act could not occur without this participation"? It is not obvious to me that an appellate judge who follows Roe is cooperating materially, but I'm just not sure.
There's also "mediate" material cooperation, which occurs when the cooperator participates in circumstances that are not essential to the commission of an action, such that the action could occur even without this cooperation. (This, it seems to me, is what judges do). Here, cooperation CAN be justified, but only under some circumstances (say, if there is a "proportionately serious reason" -- perhaps "the maintenance of stare decisis " counts? -- and if the cooperator's acts are sufficient "remote" in terms of causation, and if there is no serious danger of "scandal".). (This latter qualifier -- "scandal" -- strikes me as the biggest stumbling block for a Catholic appellate judge, frankly.)
posted by Lawrence Solum 8:57 AM