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Sunday, September 26, 2021

Think like a debater #8 - Is it ever all right to break the law?


Well, obviously not.

The law is the law, whether you like it or not, isn’t it? Respect for the rule of law is one of the fundamental bases of a civilised society. Once you start allowing people to break it, there will be no controls on anyone’s behaviour, and no one will be safe.

But what if the law is fundamentally immoral? In South Africa under apartheid (1948-94) the Black majority were denied the most basic human rights. Where they could work, live and travel was controlled by the government. An important instrument of this control was the ‘passbook.’ Many Blacks protested against the pass laws by publicly burning their passbooks. This was against the law. 

Were they right to break the law? You could say that the rule of law must be upheld in all circumstances, however objectionable individual laws may be. If people didn’t like the passbook laws, they could campaign to change them.

The problem was that they couldn’t. As well as having their work and personal lives controlled, Black people in apartheid South Africa were not allowed to vote or take part in any political activity. You could argue therefore that a state like apartheid South Africa which systematically excluded a majority of its population had forfeited its legitimacy, and any need to respect its laws.

The United States, on the other hand, is one of the great democracies of the world. Surely the rule of law should be respected there? Rosa Parks didn’t think so. On December 1st, 1955, she refused to get off a bus to make way for a white passenger who, according to the rules around racial segregation on buses in Alabama at the time, was allowed to take her seat. So she was breaking the law. Her protest helped spark a decade long campaign of civil disobedience (non-violent breaking of a law which someone considers to be unjust) by Black people and their allies in the southern states against racial segregation by, for example, entering restaurants, bars and other public places from which Black people were excluded by law. Their campaign ultimately achieved significant advances for African-Americans. 

Again, you could argue that the law is the law, and that there are legal ways to challenge existing laws. The problem in this case is that, while in theory the United States in the 1950s and 1960s, unlike apartheid South Africa, had a universal franchise (that is, everyone was allowed to vote), in practice there were measures in place in many southern states to prevent Black people from voting or engaging in political activity. There would have been no point in campaigning lawfully against racial segregation; it would have changed nothing, and the manifest injustice of the laws would have remained.

The Republic of Ireland in 1971 was a fully democratic country. Every adult was allowed to vote. It was also a country in which it was against the law to possess or use any form of contraception, in line with the Catholic Church’s teaching. A group of feminist campaigners thought this was wrong, so in May of that year they took a train from Dublin to Belfast in Northern Ireland, where contraception was legal. They bought contraceptives in Belfast, and on their return to Dublin threw them into a crowd of waiting supporters. By importing contraceptives to the Republic of Ireland they were breaking the law. For them, though, it was more of a symbolic gesture, designed to draw attention to the absurdity of the law. (It was made even more symbolic by the fact that they hadn’t realised that, while the use of contraceptive pills was legal in Northern Ireland, it was only possible to buy them with a GP’s prescription. So they bought several boxes of aspirins instead. The pills with which they showered the crowds in Dublin would have stopped a headache, but not a baby. Still, the intention to break the law was there.) 

You could say that they should have campaigned within the law to legalise contraception. However, none of the main political parties in Ireland at the time was willing to challenge the power of the Catholic Church by contemplating a change in the law. The campaigners felt that only a high profile symbolic piece of direct action (breaking the law to draw attention to an issue) would spark change.

And so to 2021. In the last few weeks, we have seen climate campaigners from Insulate Britain, who believe all homes in Britain should be better insulated to cut energy consumption, blocking exits to the M25. This is against the law. It has also caused major disruption to many people.

You could argue that the campaigners should have stayed within the law. They would argue that climate change is an emergency which poses an existential threat to humanity; it may be necessary for the rule of law to be set aside for a while to bring home the extremity of the situation. Campaigners are willing to accept the consequence of prison sentences in order to focus public attention on the emergency. 

With any breaking of the law for a principled purpose (to fight racism, sexism or climate change), there is also the pragmatic question of whether it works. Will it become counter-productive if the action alienates possible supporters? The racism of apartheid South Africa or 1950s Alabama was so manifestly unjust, few would argue that burning a book or sitting on a bus was a disproportionate response. Women throwing pills and condoms at a crowd was a bit of fun in the tight-lipped, puritanical world of 1970s Catholic Ireland, shocking only to those who would have had no sympathy with the women’s cause in any circumstances. However, the considerable inconvenience caused to drivers who, through no fault of their own, happened to be in the way of the M25 protesters in recent weeks may well have alienated many people who would otherwise be sympathetic to the environmental cause.

The point of clash is essentially whether you prioritise principle or pragmatism. Is the principle of the rule of law so important and so absolute that the law must never be broken? Or should we consider each case on its own merits, pragmatically, and decide whether the benefits of breaking the law in some circumstances outweigh the harms?

Motions that go with this topic:

  • This house would never break the law.

  • This house supports direct action to tackle climate change.

  • This house supports direct action to fight racism.

  • This house believes unjust laws should be broken.

  • This house supports Insulate Britain / Extinction Rebellion

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