Law and morality


in Law, Politics

Tall ship ice sculpture at Winterlude, Ottawa

There is no fundamental connection between morality and law. Law derives from the combination of rules and the existence of an authority with the ability and will to enforce them, at least most of the time. Morality, by contrast, has to do with situations, the options available to individuals, and the likely consequences of possible actions.

It is possible to imagine cases in which particular actions are moral but not legal (riding in the section of the bus reserved for white people, despite being black in segregationist America or South Africa) as well as actions that are legal but not moral (clearcutting a huge swath of forest after buying a permit from a purely self-interested king). If you accept that it might be morally necessary to lie to a group of Nazi soldiers about where a group of Jewish children are hiding, you accept that it can sometimes be acceptable, or even laudable, to violate the laws that happen to exist in a certain state at a certain time. Simply following the law without evaluating its relation to morality makes a person no better than a secret police officer, mindlessly following orders to round people up to face uncertain fates.

Pragmatism isn’t a morally relevant quality, at least in and of itself. The fact that the state may punish you for breaking the law or failing to act as the law demands doesn’t have any moral force, one way or the other. The relationship between pragmatism, morality, and law is based around the pragmatic evaluation of the consequences of obeying or not obeying the law. Not obeying the law against arson is unlikely to have positive effects; ignoring the law against trespassing, when some important purpose compels the unapproved passage through someone else’s property, is likely to be defensible in many more cases.

Reasons why the law can be moral

In democratic societies, a good case can be made that the law is usually compatible with morality. Partly, this is the result of the democratic process, which includes some relatively good protections against the unjust domination of one group by another.

Sometimes, law is important because it provides clear guidelines and thus produces better overall outcomes. A good example is speed limits. We can agree pretty easily that there should be some limit, though people might disagree on what it is. It is safer and easier to choose a reasonable figure than to let everyone decide individually. Both domestically and internationally, law plays an important coordinating role. It keeps radio stations from interfering the the transponders of aircraft and ensures that one’s laptop can be plugged into any properly functioning electrical outlet in the state.

At a higher level of abstraction, law is important for reconciling divergent moral perspectives: say, one that sees it as unacceptable to portray Mohammed visually and another that has no such qualms. Particularly within a democratic system, law plays a vital role in creating the boundaries within which we can make demands of one another. For instance, I may have no right to demand that you remove a religious symbol from your car or home, but perhaps I can if it is on your desk as a judge or police interrogator. Exactly how this balance is struck is difficult to manage, and it is likely that multiple acceptable options exist. Reaching one of those options, however, depends on engaging with the law, rather than simply accepting the present form at face value.

Reasons to disobey law

There are two major reasons to disobey the law: because it is unjust, or because there is an ongoing emergency.

Refusing to turn up for duty when drafted to serve in an illegal war could be an example of the former. So could sharing a bottle of wine at dinner, while camping in a public park. In each case, an individual evaluation is made about the appropriateness of the existing rule to the present situation. If a compelling case can be made that the rule is harmful or irrelevant, it is sensible for thinking people to disregard it. Civil disobedience goes a bit further, since people go beyond breaking a law to activity and openly demonstrating the breach. This too can be a moral action, if it calls public attention to the injustice of an existing law, or the importance of some competing claim.

Breaking the law in emergencies is relatively uncontroversial. A sixteen-year-old who violates the terms of a learner’s license by driving a dying relative to the hospital is breaking the law in an entirely excusable way. This is recognized in the common law through the defence of necessity. One of the better features of the common law system, it is an overt recognition that law exists to serve the majority of cases, and will fail to produce good results when applied directly in some circumstances.

A duty of evaluation

In the end, the sensible position to take is accepting that in most places, most laws have a sensible reason for existing. That does not, however, absolve individuals of the duty to consider the circumstances in which they find themselves and the appropriateness of acting in one way or another, on the basis of what they reasonably expect the outcome of their actions to be. The alternative is a nation of unthinking robots, following rules that may be well balanced and wise – or arbitrary and viscious – with no more contemplation or personal responsibility than a missile launched by the state at a target that looked unfriendly to the rulers.

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{ 7 comments… read them below or add one }

Tristan February 16, 2008 at 11:44 am

I agree with your account. There is a tradition in legal philosophy which attempts to argue that one cnanot give an account of law without reference to morality, but in effect it means it cannot give an account of why you ought follow the law without reference to morality. Those who think morality is required for a full account of the law and those who don’t simply have a different opinion of how much should be explained (i.e., need we explain merely the law and its operation, or also why people should follow it?)

I think we should recognize that whereas the Law makes determinations that (ideally) apply to everyone, everywhere, moral decision making makes determinations that apply to here and now. I think it is a mistake to think morality can make “laws”, although it can certainly produce principles for determining one’s own action. There is certainly a tension in morality between serving the question “how ought I live” and “how ought one live” – these are certainly different questions. Sharing a bottle of wine in the park is a moral decision, you are right to say it requires evaluation beyond the law. However, it is not a moral law in the sense of it having applicability to everyone. In fact, if everyone shared wine in parks responsibly, I doubt the law against wine in public parks would remain in force very long. The contradiction between reality and law might cause judges to decide the law was out of date and needed reformulating (as with drug laws). However, we arn’t worried about that when we decide to drink wine at the park because we don’t think the result of the evaluation applies in general to but to these specific people and this specific park at this specific time.

Mike Kushnir March 10, 2008 at 8:30 pm

re. defense of necessity…

funny, i was just reading about r. v. dudley and stevens.

. September 23, 2008 at 2:37 pm

I say to you, this morning, that if you have never found something so dear and precious to you that you will die for it, then you aren’t fit to live.

You may be 38 years old, as I happen to be, and one day, some great opportunity stands before you and calls upon you to stand for some great principle, some great issue, some great cause. And you refuse to do it because you are afraid.

You refuse to do it because you want to live longer. You’re afraid that you will lose your job, or you are afraid that you will be criticized or that you will lose your popularity, or you’re afraid that somebody will stab or shoot or bomb your house. So you refuse to take a stand.

Well, you may go on and live until you are ninety, but you are just as dead at 38 as you would be at ninety.

And the cessation of breathing in your life is but the belated announcement of an earlier death of the spirit.

You died when you refused to stand up for right.

You died when you refused to stand up for truth.

You died when you refused to stand up for justice.

“But If Not”: Dr. Martin Luther King Gives a Sermon On Civil Disobedience in a Rare Recording, Direct link to MP3

Tristan January 9, 2009 at 3:24 pm

The fact that you can argue that a law should not be enforced or should be abolished because it is immoral makes it sure seem like there is an inherent connection between morality and law.

Milan January 9, 2009 at 3:29 pm

Certainly, we should aspire to have moral laws.

At their best, laws are a mechanism for achieving better outcomes than would be possible in their absence.

. September 23, 2010 at 1:30 pm

Related: But if Not

anon August 27, 2015 at 12:04 am

The last few days here have been focused on disobedience trainings. The first thing we learn is the “Action Consensus”, which defines the tone of the action which all participants agree to stick to. It cleverly avoids opening up the can of worms of “violence and non-violence” by never using these loaded moralising terms. It states that “We will be calm and considered. Escalation will not be provoked by us. We will not put people in danger.” It also says there will be no damage of the machinery. This is not for moral reasons, more to enable the safety of all participants. As soon as things start to be broken, the police inevitably increase their violence towards us and charges for occupying a mine are much lighter than for property damage. If people want to sabotage things there are two other open cast mines in the area to play in anyway.

When I first got involved in direct action I thought that we could bring down the fossil fuel industry, and industrial civilisation to boot, just using openly announced acts of civil disobedience, by making the system unworkable. But through the years I realised that however big the movements are, we never have enough bodies willing to risk being arrested and ready to face the long drawn out court cases. Ask yourself – do we have enough bodies to shut down every open pit coal mine in the world, every oil refinery, fracking site and arctic rig, to bring the Mordorian tar sands in Alberta to a halt, to block all the chimneys of all the power stations in China ? Of course we don’t, not even for one day, which we know would not be enough anyway.

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