Our Morning Double Shot editor takes a different view than I on the relationship between law and morality when it comes to protests over despotic lockdown laws. Here’s an excerpt of the Double Shot Editor’s view from this morning’s briefing:
This newsletter has said it before and, although others of a more libertarian disposition will disagree, it will say it again. True conservatives believe in the rule of law and the right of the lawful authorities to make rules, within the law, to contain the coronavirus pandemic. They – we – have no God-given right to pick and choose what rules we want to obey. Conservatives protest peacefully, persuade others by their arguments, and seek to change the harm-causing rule-makers at the ballot box. But we cannot simply take to the streets fomenting violence and anarchy because lawful powers, that we did not question when we had the chance, are exercised by the civil authority.
Now in the regular pages of the SpecOz back in early August, I dealt with the general arguments one major school of legal philosophy gives for separating law and morality, for distinguishing the claims of law and the claims of morality. The idea that we all ultimately owe allegiance to the law, whatever the circumstances, is not one the great legal philosopher (and as it happens, man of the political left) H.L.A. Hart thought was remotely compelling. And I agree with Hart. Yes, if you are lucky enough to live in benevolent liberal democracy you might go your whole life without being faced with laws you decide are too morally flawed, even egregious, to obey. Many aren’t so lucky. But you might be.
But if things in your liberal democracy move in the direction of heavy-handed despotism then there is certainly no reason to think that the mere realisation that ‘this is law’ should always and everywhere automatically command our loyalty and allegiance. That’s my view as well as Hart. And let me be perfectly clear. I, no more than Hart, do not believe in natural law type claims about certain inalienable rights given to us by our Creator or somehow infused into the fabric of the universe. It’s not a God-given right to pick and choose. It’s a function of being thinking beings in a world where law sometimes becomes so heavy-handed one cannot comply with it in good conscience.
And notice that it is precisely that sort of calculation that motivated protesters ranging from those who helped bring down the Berlin Wall, to Gandhi, to Martin Luther King and the US Civil Rights movement. All of these and more were well aware of the legal rules that the ‘lawful authorities’ had made. And they chose not to obey them. And in choosing to disobey them they calculated how best to practice civil disobedience, knowing that there would be a legal price to pay.
Think here of say Cassius Clay, later to become Muhammad Ali, who refused to fight in Vietnam preferring to go to jail. Or think of all the Civil Rights protesters in the US South in the 1960s who definitely protested against the existing laws that had been made by ‘the lawful authorities’ – some of protests becoming very violent indeed, usually because the police initiated the violence, while some took other, more imaginative forms such as having those opposed to the laws go into segregated grocery stores, fill up trolleys to the brim, take them to the till, and then walk out without paying.
My point here, with respect to our Double Shot barista and as a conservative myself, is that there is nothing in being a conservative that precludes one from thinking that a situation is so bad – because the lawful authorities have gone so far off the rails – that protest and disobedience of the law is fully warranted. That is my view, at least. And I reckon I’m in good company, from the top legal philosopher I’ve ever read to the above practitioners of civil disobedience – as it happens, none of whom are today castigated for undermining ‘the rule of law [or] the right of the lawful authorities to make rules’.
Think about this from the point of view of elected politicians who have become way too big for their elected boots, and started to exhibit some of the traits of the despotic, heavy-handed petty tyrant. A citizenry full of those who refuse to practice civil disobedience (or make that a citizenry of conservatives who think their primary allegiance must always and everywhere be solely to the law and to whatever those with the lawful authority to make legal rules say) is a society that takes the same path (to quote H.L.A. Hart again as I did in my earlier article) as ‘sheep to the slaughterhouse’.
To repeat, law is one thing and one’s moral evaluations of it are another. And none of us, conservatives like me included, should think that law always and everywhere trumps morality. If the situation gets dire enough civil disobedience is warranted. Yes, those who indulge in it should expect to pay the legal consequences. Yes, it should never be an easy call to make if you are lucky enough to live in a liberal democracy. But, again with respect, it is fatuous to pretend things can never get to the stage where that call has to be made. Each of us will decide for ourselves when that times come. Those living in Queensland like me will make different calls than those in Victoria (and also be very reticent to make easy judgements about those in the world’s most stringently locked down and bankrupted city in the world).
Now to be fair our Double Shot editor does in the quote above seem to hedge his bets by opening the door to peaceful protests. Fine. But no protester can know for sure when he heads out in the morning what others will do. If our peaceful protester turns up and finds the police on the side of the road kneeling, as some did during last year’s BLM protests during the height of Covid deaths, then it is plain that the protest will stay peaceful – that’s what happens when the police kneel in obeisance to the protesters’ cause.
Things may be different when (and from my viewing of video clips of some of these protests this certainly happened on occasion) the police initiate the violence. Or when they tackle a 70 year old woman and pepper spray her. And there are other instances of what I would characterise as heavy-handed policing, a good few of them.
Let’s be clear. None of that justifies any protester turning violent. But likewise if the test becomes ‘you can’t go if there is any chance at all that people you don’t know join the protest and they – not you, but they – become violent’. On that test no one can ever protest because my peaceful protest is a hostage to others who (some because that is what they wanted all along and some in response to what they perceive to be out-of-control policing) may make it anarchic and not peaceful. That in no way makes the person committed to peaceful protest him or herself a ‘foment[er] of violence and anarchy’. And we should not so easily elide the desperate, out of work, small business destroyed peaceful protester with the fomenter of violence. I have masses of sympathy with the former and none for the latter. But neither do I casually tar the former with the brush of the latter.
Put bluntly, all of us in fact do have ‘the right to pick and choose what rules we want to obey’. For me, an atheist, it is clearly no God-given right. It is what follows from being a thinking being trying to make tough calls in times when the political authorities have become (let’s be honest) despotic and so heavy-handed the usual remedies are worthless. And as a digression, it is precisely in such times that the job of policing should be done as lightly and with as much sensitivity as possible. I say that having grown up in Toronto in the most pro-police middle-class family and as a long term law professor who (until this pandemic) was easily the most pro-police law professor in the country. No longer I’m afraid.
Anyway, in my view this issue of protesting is a very complex one, one having to be made in incredibly difficult circumstances. Different people will make different calls. The almost ritualistic denunciations of the bulk of these protesters is too trite and too simplistic to my way of thinking. Those who have themselves shunned violence and opted for peaceful protest have made a call that I respect. I don’t know if I lived in Melbourne if I would have made it myself. But I might have.
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