July 13, 2017

Horse 2297 - You Should Obey The Unjust Law

Floating around in the ocean of Twitter this week, came the following question from John Tasioulas who is the Yeoh Professor of Politics, Philosophy and Law at The Dickson Poon School of Law, King's College London.


I happen to like questions of this sort because​ you can keep on flinging thoughts towards it, like throwing spaghetti at the wall, and eventually you arrive at a reasonably sensible answer provided you don't mind the mess left over from all of the mental spaghetti that you've thrown. My initial thought was that this was a fait accompli and that I'd just bang on the the pot of spaghetti and say that if something is unjust then it shouldn't be allowed to stand.
Indeed, someone has already spoken quite eloquently on the subject; no less than Martin Luther King Jr. in his letter from Birmingham Jail during that rather important year of 1963 which would eventually lead to the March on Washington for Jobs and Freedom.

One may well ask: "How can you advocate breaking some laws and obeying others?" The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that "an unjust law is no law at all."
- Martin Luther King Jr. 16 Apr 1963*

That's it. Game over. Kick over the boiling pot and leave it for the howling dogs to lick up. However, the more that we stir the spoon around in the boiling spaghetti pot of ideas the more we find ourselves having to untangle some pretty curly sort of dilemmas, which threaten to break into fragments as easily as this metaphor of imaginary spaghetti.

The first issue that need to be addressed is the question of who gets to decide what is a just or unjust law. Let us assume for a second that I am a madman who really really likes killing people and feels no remorse for it whatsoever. In my mind, the impediment of the law which declares that killing people is a crime, is fundamentally unjust because it prevents me from doing a thing that I really really like doing. Remember, I am a madman and so issues like the harm principle mean nothing to me and so in my mind, the question of what is just, merely comes down to what I am allowed and not allowed to do.
Do I as an individual have the right to determine what is and what is not just? Moreover, should I be allowed to have such an ability? Any sane person must conclude that the answer to this has to be a very very strong and emphatic 'no' if for no other reason than the coherent functioning of society. It is therefore a good thing that I am not allowed to decide these things and also a good thing that I am not really a madman.
One of the good things about the Rule Of Law is that it applies equally and fairly to everyone; without fear or favour. Not only do individuals get to decide what is and isn't just at law unless they have been placed in very particular positions of power to do so but there is no right not to obey the law. Nobody has the right to decide unilaterally that the law does not apply to them; not even the head of state, lest they lose their head. Equally, in the same way, I don't think that individuals have the right not to follow the law, even if they unilaterally decide that the law is stupid or unjust. The law might very well allow or not allow something but if every individual had the individual right to determine what laws did or didn't apply to them, then you may as well just legalise everything and return to the state of nature which is brutal, nasty and short.

The second issue that I have is more of a mechanical one which relates to how law is decided and springs forth. Apart from the law of equity in which judges decide what is fair (and in ye olde times, basically on a whim), and common law in which what has gone on in similar cases should inform what happens in new cases through the principle of precedent, the job of parliament is to enact statute law; which trumps the lot. Statute law is neither the rules of whimsy or of collective memory but hard rock rules. When a judge decides to throw the book at you, that book has the hefty weight of statute law behind it, where as the law of equity or common law is like throwing a sock full of custard at someone and the result is equally as messy.
The thing about statute law is that because it is made by parliament, it is contestable. Contests frequently abound when people look at the law, such as the old contest between labour and capital, differing sets of public interests, and even issues which are informed by religion. Whenever you have a contest, it is almost guaranteed that there will be conflict and because of this, it makes far more sense to me that this conflict is played out in the theatre of parliaments rather than a theatre of actual violence.

That last question about what theatre that the conflict which arises from the conflict over what is perceived as a just or unjust law or set of laws, is almost always in my opinion, never properly solved in a theatre of violence. Invariably the supposed solution never actually addresses the injustices but creates groups who have further resentments. This isn't to say that I don't believe in concrete action, because marches and strikes and public demonstrations all serve a useful and proper place in the moving forward of society; its just that actual change happens either through the legislature, or the ballot box, or when power is directly spoken to.
Secondary to this, if a whole regime is unjust, then while a revolution whether it is peaceful or otherwise might immediately satisfy the whims of people in the moment, unless there is a plan to work out how to exercise power once the event is over, the act of revolution might not achieve anything which is very long lasting. There are multiple occasions in the tragedy of history where a wild revolution has broken out and things revert back to something approaching something similar to what was there before the revolution ever took place. To wit, the American Revolution was started over a taxation dispute and the new nation was plagued with revenue problems, the French Revolution and all the ideals it fostered would eventually peeter out and another monarchy would be installed, but Ghandi's suggestion of nonviolence would eventually precipitate the Republic Of India which all things considered is amazing that it holds together at all.

It seems to me that if there is an unjust law, or laws plural, or an entire unjust system, then the best approach is to live with the system and to set about changing either the law or the system via the most peaceful means possible. If that means placing people into legislatures, then so be it.
The parable of the Wind, the Sun, and the Old Man's Coat comes to mind here, where the gentlest approach often makes the biggest and most permanent change.
Obey the unjust law insofar as much as is possible and change it as peaceably as possible. As far as I can tell, the alternatives to laws which are unjust are either laws which are just but which do not yet exist, or a descent into no law at all and that benefits nobody.

*http://www.africa.upenn.edu/Articles_Gen/Letter_Birmingham.html

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