When it’s right to break the law

Mar 11, 2016

By Andrew Hamilton
Offering sanctuary to undocumented women and children seeking protection would break the law. That is a fact. The important question is whether it would be right to break the law.

In healthy democracies this question is frequently raised. In any society it is common for people to break the law and disobey lawful instructions. People fail to move on when instructed by police, evade tax, drive too fast, keep silent about abuse in churches, speak out about abuse in detention centres, trespass on military facilities, and drive when drunk. All break the law and, if caught, face sanction.

This blanket condemnation of law breaking, however, runs against our inherited moral tradition. We honour many people who disobeyed the laws of their country. They may include Christian martyrs who disobeyed Roman law compelling them to worship the Emperor, Hans and Sophie Scholl who distributed anti-war leaflets in Nazi Germany, and the many in occupied Holland who harboured Jewish families.

These people appealed to a higher law that trumped laws enacted by their rulers. Because the laws were unjust they believed it was right to break them. And we salute them.

The argument for disobedience to unjust laws was made even more strongly at the Nuremberg trials following the Second World War. Nazi officials were condemned for crimes against humanity, despite pleading that they were obeying the law and lawful instructions. The tribunal decisions declared disobedience to Nazi laws not only legitimate but obligatory.

The implicit conclusion to be drawn from these examples is that we must obey just laws, but that we may, and sometimes must, disobey unjust laws. To say that a law is duly enacted is not enough to command our obedience. The law must also be just.

So we must ask first whether the law prohibiting any action is just. If we find the law to be unjust, then we may ask, under what circumstances it would be justifiable to contravene it.

The laws that were passed to criminalise harbouring people who seek protection are also unjust, and may legitimately be broken for sufficiently serious reasons. These may include the urgency of the need to rescue people from the harm inflicted on them by unjust laws, or to proclaim publicly the injustice of the policy.

The main argument against breaking even an unjust law is that it will bring the law into disrepute. It certainly commits those who break unjust laws to respect law.

But respect for law means more than obeying laws. It means respecting the rule of law in society, which is built on the understanding that all people stand equally under the protection of the law. The law and its administration must serve the common good and not sectional interests.

The responsibility for upholding the rule of law lies both with individual citizens and with governments. Above all, the laws that governments pass must be just. Unjust laws, above all, bring law into disrepute and foster law breaking.

To respect the rule of law while law breaking is a delicate matter. It involves being fastidious in focusing action on the law that is unjust, and not acting indiscriminately outside the law.

It also commits the lawbreaker to act seriously, to work in other ways to have the law changed and to accept the punishment that may follow breaches of the law. Breaking unjust laws must serve the common good and not simply be an expression of unbridled individual liberty. But it is hard to weigh reasons when you are dealing with unreasonable laws and governance.

Finally, breaking laws must also promise some effectiveness. Sometimes this will lie in immediate benefit to people being treated unjustly. More often it will lie in exposing the injustice of the law by highlighting its effects on ordinary citizens as well as vulnerable people, and so commending a change of policy.-- Eureka Street