When to break the law?

I’ve really enjoyed the ongoing discussion on last week’s post about abortion. This experiment is going great so far! I hope we can keep it up this week. I expect it will be less of an issue with today’s topic, but just in case: please remember to leave religion out of your arguments. This is a secular discussion of morality.

Most of the time, in a liberal democracy such as the United States, I think we have a moral duty to obey the law. Even if I think that a law is incorrect, I will generally defer to following it for two main reasons.

First, I recognize that I might be wrong. The laws we have are debated and eventually agreed upon by many people, and although I consider myself reasonably smart, I think that kind of consensus-building is more likely to lead to right answers than any one individual’s opinion. I’ll continue to investigate the reasoning behind and impact of a law I disagree with, and I’ll advocate for changes, but in the meantime I’ll follow the law as it stands.

Second, I think that in a democracy we have all effectively promised each other that we will abide by the outcomes of the democratic process. This is a large component of the concept usually referred to as the “social contract.” Legal restrictions on our actions are fair because everyone agrees to be bound by them. Of course, there’s no actual contract that we sign when we’re born, and there aren’t an infinite number of countries that we could move to offering all possible forms of government for us to choose from. But by continuing to live in this country, and reaping the benefits that the government offers (e.g. safety, education, other public services) we are agreeing to follow the rules, and reneging on that promise means doing a disservice to all the other members of society — who made similar promises under the assumption that you (and everyone else) were promising, too.

There is a practical consideration, as well. In order to preserve law and order, it’s important that there be an established norm of following the laws. If everyone felt entitled to break laws whenever they felt like it, there would be chaos, which would lead to a dangerous decrease in safety and general social stability. This principle extends to every law from “don’t murder” and “don’t steal” all the way to “don’t run a stop sign” and “don’t litter.” If we want to live in an orderly society, we owe it to ourselves and each other to preserve that norm. This ties in with my second reason, above, to some degree. However, I think that even if you could get away with breaking the law in a particular instance with no practical harms, you would still have this general moral obligation to keep your promises.

You’ve probably noticed that I haven’t made these claims without exception. That’s because I do think that there are limited situations in which it is morally acceptable to break a law you think is wrong. My bar is pretty high, though. Even if I had no doubts that a particular law was incorrect, even detrimental, I would default to obeying it unless I thought the law was fundamentally unjust. I would vote for politicians who opposed the law, vote in referenda against it, and/or participate in protests or other activism to advocate for a change. But I recognize that part of living in a democracy is following some rules that the majority approves of even when I’m in the minority, so I’ll do that even when it’s unpleasant.

Sometimes, of course, the majority makes rules that aren’t just stupid, but are more deeply wrong from a moral standpoint. If owning people as property is legally allowed, then certainly, help those slaves escape (or, being a slave, feel entitled to escape). If the law mandates that you hold certain opinions and requires you to report people whose ideologies differ so they can be punished and “reprogrammed,” then go ahead and dissent if you wish and keep your mouth shut about others. Laws like these are much worse than a tax code with suboptimal incentive structures; they’re actually unjust and it would be immoral to obey them.

It’s difficult to create a rubric for which sorts of laws should be classified as “unjust” rather than just “clearly misguided.” I’m able to identify cases that clearly fall on one side or other other, but I don’t have a bright line to offer you (at least within the scope of this particular post). For the purposes of this discussion, I’ll hazard this definition: A law is unjust when it violates a fundamental right. A fundamental right is a protection without which people would not have consented to the social contract. (Something like Rawls’ veil of ignorance is probably a necessary part of this definition. Would you have consented to the social contract ahead of time if you did not know your gender, your skin color, your social status, your wealth, etc. in advance? That is, would a generic person with any random traits be expected to consent?)

One more issue on this topic that I think is worth discussing is what manner of disobedience is warranted. I’m inclined to say that breaking an unjust law should generally be as narrowly tailored as possible. Given that my moral judgments are premised in part upon the idea that it’s bad to do harm to others (yes, I will discuss “first principles” at some point later on), I believe violence should be avoided unless that is what is really necessary to correct the rights violations occurring.  More egregiously unjust laws merit more flagrant and potentially dangerous disobedience, and conversely, more flagrant and dangerous acts of disobedience require greater certainty about the extreme injustice of a law and about the necessity of those acts in correcting the injustice.  Up until now I’ve been generally talking about liberal democracies, but we could take this concept to the extreme and argue that if the government itself is fundamentally unjust and does not have any (or, any effective) legal framework for challenging those injustices, a civil war would be morally justified and even commendable.

Am I too much of a goody two-shoes? Or am I too lenient? Have a particular tough example of this dilemma that you want to hash out? Have at it in the comments.

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8 Comments

  1. Aristarchus

     /  April 10, 2011 at 5:07 pm

    I’m not sure the veil of ignorance can give you the stupid vs. unjust distinction. I mean, if it was up to me, I certainly wouldn’t have (even behind the veil of ignorance) consented to a government that included American/European-style farm subsidies. (In fact, I think they’re harmful enough that a constitutional limitation wouldn’t be so bad…) Does that justify civil disobedience (or even armed rebellion?) in protest?

    Now, of course you can say something like, “Sure, you would have preferred a farm subsidies ban, but you’d probably have been willing to agree to a social contract without one if that was the only option.” The problem, though, is if the alternative was really complete anarchy or prehistoric tribal societies or something, I would be willing to agree to all sorts of horrible things – something like China’s communist dictatorship still seems superior to that. I think the veil of ignorance gives you a good idea of what the ideal government structure is (or really, ideal set of laws – I don’t know how it distinguishes what should be a constitutional ban rather than just a law), but I don’t see how it creates some sort of line between the mildly dumb and the horribly unjust.

  2. Aristarchus: the veil of ignorance point itself is really just about imagining that you don’t know who in society you’re going to be, before you “sign” the social contract. So that adds a caveat to handle things like, “Of course I would have consented to a society that enslaves people with dark skin, because I have light skin!” etc. That’s a useful tool, but I didn’t intend to say that it is the entire basis for the line between stupid and unjust laws. Actually, it sounds like your objection has more to do with that particular hypothetical act of giving consent itself — which is fine, and I’m just going to answer you as though that was what you meant, but please correct me if I’m mistaken.

    What I wrote was, “A fundamental right is a protection without which people would not have consented to the social contract.” That means that, in our hypothetical state of nature loosely approximated by prehistoric society, we would be better able to protect that ability or aspect of ourselves than we would under this government being formed. One problem with this definition that your comment highlighted (intentionally or not) is: what if the government is better than the state of nature with respect to one ability/aspect, but equal (or worse) in all others? You’d opt into that contract if it was an improvement over the status quo, but that doesn’t require superiority in every important detail.

    I do think that I would prefer a tribal society or anarchy to a government through which a totalitarian ruler could force millions of citizens to starve to death and arrest and punish them if they tried to do anything sensible to avert disaster for themselves personally or if they failed to meet physically impossible standards. At least under a more primitive system, I am more free to defend myself, to run away, to think what I want and express opinions if I want, and so forth. So… maybe we are slightly differently calibrated on our political-injustice-ometers.

    I agree with you that the standard I put forward in this post is not a perfect one. (That’s why I “hazarded” it.) Still, I think it gets at something that is valid. Here’s a question that I think would clarify the points where we disagree: Are you arguing that freedom from poorly implemented farm subsidies is a fundamental right, and the fact that we would clearly consent to governments that did not offer that protection shows that the standard is inaccurate? Or is your argument that freedom from farm subsidies is clearly not a fundamental right, and the fact that you would not consent to a government that failed to protect you from them shows that lack of consent does not provide a clue to what is or is not a fundamental right?

    (Did that sentence make sense?)

  3. Aristarchus

     /  April 10, 2011 at 6:54 pm

    Yeah, my objection applies to defining rights as “things where if the government violated them we wouldn’t consent to that government.” So let’s try to define the choice more rigorously. If it’s a policy-by-policy consent, then I wouldn’t consent to violations of free speech, but I also wouldn’t consent to farm subsidies. In fact why would I ever consent to any law short of ideal ones? Of course, the problem there is that it’s not clear what the alternative is.

    So let’s assume it’s an all-or-nothing consent, and that the alternative is anarchy or primitive tribal societies. And say you were asked whether you would consent to the government of modern China. Yes, they have no free speech, jail dissidents, and do all sorts of other horrible things. But I still think I would enjoy life their much more than life as a cave man. In modern China, chances are I will survive beyond infancy. And I probably won’t ever be dismembered by a wild animal or freeze to death. I’m not very likely to be murdered. I’ll have much better education, and the world will be much more interesting to live in. It seems to me to be obviously superior to anarchy. But if that’s true, then the things it violates must not be rights by your definition, which seems wrong. (If modern China is too oppressive for you, think of 18th century England or modern Thailand or whatever. It seems obvious to me that there are societies that clearly have some degree of fundamental rights violations that any reasonable person would still choose over primitive caveman life.)

    Basically I’m saying that violations of free speech and farm subsidies differ only in degree. I would prefer that my society had neither. I would consent to a society that had either if the society was otherwise enough better than the alternative. The only difference is that for me to consent to living in a society that lacked complete free speech, it would have to be much better than the alternative in other ways to make it worth it. For me to consent to a society with farm subsidies, it’d only have to be a little better than the alternative. But I could pick thousands of different things and get a complete continuum of this sort. I how you use this to argue for two clearly distinct categories, with one called “rights violations” and one called “stupid laws”.

  4. At the risk of getting too far off topic … do you think that fundamental rights exist? Or do you think it’s just a continuum from “laws that are very good for people” through “laws that have no real impact on people” to “laws that are very bad for people”?

    There is a sort of common-sense definition of fundamental rights generally referred to in political philosophy or jurisprudence. I’d offer the UN Declaration of Human Rights and the US Bill of Rights as rough (and surely imperfect) outlines of what these strange creatures might look like. Do you suppose this is just a shorthand for “really really important stuff”? Or is it possible to construct some bright line around things and call those things fundamental rights?

    Would you agree with my original post if I had simply argued that bad laws can range from slightly unjust to egregiously unjust, and that disobedience to them is warranted in corresponding degrees, with some unspecified tipping point at which the injustice of a law should overcome our general deference to the democratic process? I’m beginning to suspect that that is the sort of thinking process I had, but that I named the things on the far side of that tipping point “rights violations.”

  5. When it comes to law we are NOT in a democracy.
    At best it is a republic, as many laws are decided on by clerks (my insult for bureaucrats). Example:
    When has anyone voted on the speed limit laws? And I break this law most of the time, but the democracy of the drivers indicates I do not break the law because the drivers set the ‘comfortable speed limit’ as can see when the cops are not around. But that is a minor example.
    IF, no WHEN, the fundies get no-abortion laws passed, I WILL violate that law to help any woman to get the necessary aid.
    But the main point of the blog is correct…HOW and WHEN do you make the choice? And when the choice is made then be aware of the consequences because as an individual you will have no power to stop the state to slap you down…permanently! Not a conspiracy thing…think ‘patriot act rules’.

  6. Aristarchus

     /  April 10, 2011 at 8:03 pm

    @NFQ:
    I’m personally undecided on the issue. My intuition is that there’s clearly a distinct thing called a “rights violation” that’s somehow worse than normal bad laws. But I’m not sure of any good argument that makes that distinction.

    I think you can make a very strong utilitarian argument for a Bill of Rights style ban on certain types of government action under the logic that giving the government power to regulate speech (for example) will almost certain, as a practical matter, lead to more harm than good, so I have no problem defending “rights” in a legal sense. But in a moral sense, I am not sure of a good logical defense for my intuition.

  7. @L.Long: Wow, your comment takes me back to high school debate. ;) The distinction between a “republic” and a “democracy” is a very blurry one, and there’s less to make of it than you think. While trying to check my own mental definitions, I came across this line on Wikipedia: “In common parlance [in the US] a republic is a state that does not practice direct democracy but rather has a government indirectly controlled by the people. This is known as representative democracy.”

    Also, this was the most recent story I could find involving people voting on speed limits in the US. It’s an AP wire from Kansas ten days ago. Here’s another from Texas in late March. Yes, these are representatives, but people vote for their representatives. With 300 million people in the country, direct democracy would prevent us from getting anything else done.

    You say that there are laws you’d be willing to break, but also warn about the scary consequences of doing so. How do you decide when the moral benefits outweigh the costs?

    @Aristarchus: I think we’re on the same page at this point. Thanks very much for your insights. I’ll keep mulling over this standards issue, and see if I can’t come up with some better way to articulate it. (I have a feeling this question defines quite a few people’s PhD theses, though….)

  8. NFQ: Yes your definition of republic is the one I use. Which means that I am usually correct in that I have no direct decision on a law, at best I can vote to remove the person approving the law as it still may be made by some clerk somewhere. So I not only have to vote to get rid of the representative but then we have to get one voted in that will decide sensibly rather then kowtowing so some old ladies that don’t like fast driving (in this example). With the work involved it don’t get changed much, so I do end up paying an extra road use tax. Yes I just heard about the Texas speed and that was OK as I use to always drive at 85 anyway, but I’m just not in Texas. I have driven in Montana when the speed limit was ‘how fast can you go?’ And even here most people never went about 60. I’ve also drove in England where they have a similar speed limit and most people drove about 60.

    The point where the moral decision is to be made is the really rough part. And although a moral-relativist, I do not know the answer, primarily because I’ve never faced a situation. The one abortion I assisted a young lady with was not against the law but just a little nerve racking because of the protesters, so no big thing. And NO ONE can ever really know that answer of which law to break until faced with it. Discussions are fine but it is only people moving there lips (or keyboards).

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