“There is no crueler tyranny than that which is perpetuated under the shield of law and in the name of justice.”
– Charles de Montesquieu
Here’s a little question that often goes unnoticed, yet how we answer is vital to our society’s well-being and hope for moral and social progress:
Are laws always just?
It’s a question I’ve always asked students in applied ethics courses in philosophy. In short, it expresses the distinction – and sometimes the incongruity – between what is legal and what is moral.
When fleshing out distinctions between law and ethics, to make the point to those students, I’ve cited laws allowing slavery, discrimination against women, and eugenics programs prevalent in Canada as late as 1972. And, of course, existing legislation still used against First Nations.
In courses in business ethics, we also review the ethical quality of various laws the government has tried to impose against people forming unions to improve their working conditions. Laws regarding working hours and the treatment of workers (including children) by industry. And laws striking down our environmental protections.
Historically, it’s a long and ugly list illustrating how the law can be unjust, sometimes viciously so.
Don’t, however, get me wrong. Our laws, constitutions and declarations also serve to reflect our foundational moral convictions, especially those that have stood the test of time. Habeas corpus, presumption of innocence, the rule of law and separation of powers are a few examples of our legal protections.
Note, however, that our considered moral convictions precede legal principles. It’s not the other way around.
We first develop and formulate our moral convictions, and then we decide – in some cases – that instancing these considered judgments into law enhances our society’s well-being. I added “in some cases” because not all our moral convictions should be matter of law.
Lying, for example, isn’t part of moral excellence. Yet, misleading our acquaintances about what time we got up this morning or where we vacation – or exaggerating our posts on Facebook pages – normally only make us guilty of offending norms of etiquette. They are typically of no interest to the courts.
It’s usually best, all things being equal, to keep morality at arm’s length to law. Most people who are inside and outside of communities heavily burdened by legal commandments prescribing morality believe things are better off that way. (Just ask those under the rule of the Taliban or North Korea.)
So we ask: “What is conducive to the good society, the good life?” “What will help us, individually and collectively, to enhance our well-being?”
It’s complicated, especially when law states something we must do (or shouldn’t do), and our conscience and moral intuitions tell us something else.
Here’s the kicker: When there is conflict between the law and our conscience, and someone with moral courage, wisdom and stature stands up and says, “This law is immoral,” civil disobedience is then born.
This is the stuff of moral progress. It awakens the conscience of fellow citizens to point out that a given law is, in fact, illegitimate.
To know when we must make such a challenge comes down to our individual and collective sense of what is good and true. It’s the kindling for revolutions against tyranny, the bloody fight and establishment of our legal rights, and the moral progress we’ve achieved since the time of cave dwelling.
Breaking the law should never be done lightly, but don’t assume that it should never be done. The offence to moral and social progress lies in believing the latter, not the former.