When the law is unjust, break the law

Here’s a dinner party question for you: when is it okay to disobey the law?

It’s a question prompted by the recent storm of controversy caused by comments made by the incoming secretary of the ACTU, Karen McManus. She made the statement that she saw no problem in breaking the law when the law was unjust.

This is a very slippery area. After all, if everyone went about flouting every law they disagreed with then we’d have anarchy. And who makes a judgement on whether a law is unjust or not?

That’s a philosopher’s dilemma and I don’t think there is a single right answer for it.

In this case McManus was making a point about some of the statutes within the recently passed ABCC laws which severely constrain and prohibit union action. The laws in the first place were politically motivated, and only ever finally passed after months of wrangling by the government and the cross-benchers. They’re certainly not an expression of pure justice, and it’s arguable that they are even reasonable (let alone fair) – that’s certainly the view of the unions, and many others beside.

For what it’s worth I agree, but that’s not really the point. Do we, as citizens, have an obligation to obey the law of the land? And I’m not talking about your parking tickets here.

The simple answer to that is probably yes, but then it’s not a simple question. There will be many emphatic that the law must be upheld regardless, because it is the law – and nothing else is, by definition, illegal.

I’m a born dissident so it’s no surprise I take a different view. It’s a point very easy to labour, but a valid point all the same. There have been myriad governments throughout history who have passed laws which with the benefit of hindsight are clearly against ‘human’ law, and very often oppressive. It’s easy to argue that a great lot of them were clearly wrong at the time – either politically expedient or socially insidious. Law perhaps, but clearly unjust.

How do we respond to those laws? How should we? Isn’t there an obligation as a human being – as opposed a citizen – to resist such laws? Or is the “just following orders” a perfectly valid defence after all?

So okay not every law is going to be so obviously wrong. There are grey areas and different perspectives, and times when laws are simply bad, rather than wrong. It’s more difficult then because what is right to one person is wrong to another.

This is why it’s so important to get laws right in the first place. That’s the responsibility of the people who govern us. In this case the legislation was raised to cripple a political opponent. Because it was so weakly found the gatekeepers who determine what should be law refused to make it so – until they were enticed by the promise of deals to be made and cooperation in other matters. Thus a poor law was passed into legislation, with the gift of trinkets. This is not how it should work, but does; it’s a failure of democracy.

Even so, it’s now fait accompli – it is law.

Sometimes laws have a use by date and it takes civil disobedience to get them changed. There’s a long history of this, and many of the rights we take for granted today are because of this. Without resistance the laws would never have changed.

Then there are bad laws passed such as this. I think it’s undemocratic and against principles of fair dealing, but there will many a union basher who will believe it’s long overdue. In such cases there is no empirical right or wrong, but I would argue that if it feels wrong it probably is.

Personally I find these discussions a little like discussions over free speech. Civil disobedience has a long history. I may not always agree with you, but if you believe strongly enough that something is unlawful then you should oppose it. That’s what democracy is about – the right to expression. That’s why in a democracy we have processes in place to arbitrate such matters.

Sometimes the principle is bigger than the law. There has been plenty of politically motivated outrage after the comments of the ACTU president (and the mealy mouthed response from Bill Shorten that bad laws should be changed, not resisted – but if not resisted, how will they change?), but I admire her.

I suspect everyone has their own answer to this question. As someone who has always stubbornly resisted the unjust the answer is simple for me. I think we have an obligation to resist the unjust law, and more power to them.



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