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When it's right to break the law


Offering sanctuary to women and children seeking protection from despatch to Nauru would break the law. That is a fact. The important question is whether it would be right to break the law. In healthy democracies this question is frequently raised.

Bearded protestor at #LetThemStay rally in BrisbaneIn any society it is common for people to break the law and disobey lawful instructions. People fail to move on when instructed by police, evade tax, drive too fast, keep silent about abuse in churches, speak out about abuse in detention centres, trespass on military facilities, and drive when drunk. All break the law and, if caught, face sanction.

Many people assert that it is never right to break a law duly enacted by the government. From this principle it follows that anyone offering sanctuary to people who seek protection in Australia is acting wrongly.

This blanket condemnation of law breaking, however, runs against our inherited moral tradition. We honour many people who disobeyed the laws of their country. They may include Christian martyrs who disobeyed Roman law compelling them to worship the Emperor, Hans and Sophie Scholl who distributed anti-war leaflets in Nazi Germany, and the many in occupied Holland who harboured Jewish families.

These people appealed to a higher law that trumped laws enacted by their rulers. Because the laws were unjust they believed it was right to break them. And we salute them.

The argument for disobedience to unjust laws was made even more strongly at the Nuremberg trials following the Second World War. Nazi officials were condemned for crimes against humanity, despite pleading that they were obeying the law and lawful instructions. The tribunal decisions declared disobedience to Nazi laws not only legitimate but obligatory.

The implicit conclusion to be drawn from these examples is that we must obey just laws, but that we may, and sometimes must, disobey unjust laws. To say that a law is duly enacted is not enough to command our obedience. The law must also be just.

So when considering the case of offering sanctuary to people who seek protection we must ask first whether the law prohibiting this action is just. If we find the law to be unjust, then we may ask under what circumstances it would be justifiable to contravene it.

Those who offer sanctuary argue that the policy that allows women and children to be sent to Nauru is unjust. It involves doing harm to vulnerable human beings who have done no wrong in order to send signals to other would-be asylum seekers. It uses people as a means to an end, which is never just.

From this it follows that laws passed to criminalise harbouring people who seek protection are also unjust, and may legitimately be broken for sufficiently serious reasons. These may include the urgency of the need to rescue people from the harm inflicted on them by unjust laws, or to proclaim publicly the injustice of the policy.

The main argument against breaking even an unjust law is that it will bring the law into disrepute. It certainly commits those who break unjust laws to respect law.

But respect for law means more than obeying laws. It means respecting the rule of law in society, which is built on the understanding that all people stand equally under the protection of the law. The law and its administration must serve the common good and not sectional interests.

The responsibility for upholding the rule of law lies both with individual citizens and with governments. Above all, the laws that governments pass must be just. Unjust laws, above all, bring law into disrepute and foster law breaking.

To respect the rule of law while law breaking is a delicate matter. It involves being fastidious in focusing action on the law that is unjust, and not acting indiscriminately outside the law.

It also commits the lawbreaker to act seriously, to work in other ways to have the law changed and to accept the punishment that may follow breaches of the law. Breaking unjust laws must serve the common good and not simply be an expression of unbridled individual liberty.

Where laws are broken for the sake of people treated unjustly by the law, as is the case when offering sanctuary to women and children seeking protection, we must be confident that our actions will actually benefit those people. Often there will be conflicting considerations.

We must weigh the benefits for oppressed and totally dependent people of taking some responsibility for their lives by seeking sanctuary, the record of successive governments acting vindictively towards asylum seekers involved in extralegal actions, the danger of vulnerable people harbouring high hopes only to see them dashed again, and the priority of accompanying people to prepare them to meet whatever comes bravely. 

But it is hard to weigh reasons when you are dealing with unreasonable laws and governance.

Finally, breaking laws must also promise some effectiveness. Sometimes this will lie in immediate benefit to people being treated unjustly. More often it will lie in exposing the injustice of the law by highlighting its effects on vulnerable people, and so commending a change of policy. For martyrs effectiveness is usually measured in centuries.


Andrew HamiltonAndrew Hamilton is consulting editor of Eureka Street.

Main image courtesy The Catholic Leader.

Topic tags: Andrew Hamilton, Nauru, High Court, offshore detention, Sanctuary



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Existing comments

This is tricky. Breaking the law, even one we consider a bad law, is serious. Of course, we all break laws: even myself, when behind the wheel, taking my eye from the speedometer for some moments and keeping up with the traffic! However, to contemplate breaking a law and then doing so - not easy. I don't want to see asylum seekers sent to a place where they are harmed. I don't want to see women being treated in hospital after a domestic violence incident. I don't want to see a child killed by a drunk driver. Do I take the law into my own hands?

Pam | 12 February 2016  

I admire those decent Australians who are prepared to break the law in support of asylum seekers. What a contrast to the indecent major party political leaders who would let asylum seekers languish in these 'hell-hole gulags' on Nauru and Manus Island. The treatment of asylum seekers by both the Australian Government and the Opposition is absolutely deplorable! Would Malcolm Turnbull, Peter Dutton, Bill Shorten or Richard Marles like their family to be deported offshore to one of these places of punishment, abuse, depression, despair and death? Would you? Supporters of these politicians, please don't make excuses. You either would or wouldn't, and you either believe and practise the Golden Rule or you don't. If you value decency and humanity, find a politician or a political party such as the Australian Greens to vote for at the next election - vote for those who value life, humanity and decency and would work hard to try to restore Australia's once good, but now trashed, international reputation! I WONDER HOW SOME OF OUR MAJOR PARTY POLITICIANS CAN SLEEP AT NIGHT! THEY ARE NOT CONCERNED ABOUT HELPING DESPERATE ASYLUM SEEKERS. THEY'RE MAJOR CONCERN IS APPEALING TO THE 'RED-NECKS' AND RE-ELECTION.

Grant Allen | 14 February 2016  

“What is right is not always popular and what is popular is not always right.” - Albert Einstein We all break the law, whether it be downloading music from the internet, or unlawfully crossing the road. I believe it is right to break the law in this case, as it is the humanitarian thing to do, and it doesn't harm anyone; quite the opposite, it's helping someone. If a law is based off the majority, it doesn't mean it is morally right.

Shannon Noll | 18 February 2016  

I think that we must obey just laws, although at times of urgency, disobeying unjust laws may be acceptable. However, the law must be just.

lalaloopsy | 18 February 2016  

I really agree with Pam's comment!!!!

Nollsie | 18 February 2016  

I think the Australians who are breaking the law in regards to refugees and asylum seekers are commendable. Everyone breaks laws, a speeding fine is an offence. The treatment at Nauru and Manus Island is absolutely shameful and it reflects on us, the Australian Society. However for us to respect the laws, we must first learn to respect people so we may not seem so despicable to those asylum seekers who are born with the same rights as us.

Lennie | 18 February 2016  

Opinions always seem to get in the way of laws, not that this is a bad thing. Opinions, ethics and morals of the population should always be considered when laws are being made. The fact that laws are made that are knowingly putting people in harms way is simply unjust. These laws are obviously being made for a reason - because they reflect a majority of the populations views, and they are an easy vote-winner for the Liberal Party. But the question really is if that is morally just.

shenanakin skywalker | 18 February 2016  

I think it's about people's different opinions that make it difficult to have a single black and white just law. Everyone has different viewpoints on different issues and it's extremely difficult to compromise and create a law that reflects all of them. So of course there are going to be people that disagree with decisions regarding law and that should be thought through before officially recognising it. Really, politics should not be about popularity but it's inevitable. It's so convoluted I don't really know really.

obi-wan canolli | 18 February 2016  

there will always be different opinions to a topic about whether it is just or not. however, i personally think that, if the law is to treat everyone equally and create justice for everyone, to support the asylum seeker, was just. although majority of the people in Australia may be against the idea of supporting asylum seekers, i think it is mostly because of the racial stereotypes or simply because they do not know what it is like to be in the position of asylum seekers. therefore, if people who are passionate about the issue, and know a lot more about it, feel like it is the just thing to do, i respect and encourage their opinions.

who knows | 18 February 2016  

Charles popularised an old saying, 'The law is - or can be- an ass'. There is another saying;- 'Laws are there for the subservience of the simple minded, and for the consideration of the wise'. There are 2 drawbacks with laws;- 1. They are often formed or influenced by politicians whose primary concern is their appetite for power; and 2. in complex matters, laws are often made in a 'one size fits all' manner like Procrustes' bed. Even in moral matters the primacy of an informed conscience is supported by Pope Francis. No moralist appears willing to admit that lying can be permitted, though they will talk about the 'legitimate use of false speech', when confronted with unjust intrusive questions, illustrated by a cartoon of a man perched precariously on the outside of his office window, saying to his secretary, 'Now will you tell him that I am not in the office.'

Robert Liddyl | 18 February 2016  

Thanks, Fr Andy. You've charted a course for addressing this complex issues - at the end of the day, a judgement needs to be made about whether the law is just, and then we need to turn our minds to alternatives, consequences, chances of effectiveness etc. It's not for the faint-hearted, but the use of children as means to broader policy objectives is an issue that demands of us the hard work that you have pointed to.

Denis Fitzgerald | 18 February 2016  

I'm going to change the headline to Andrew's article to - "Can it ever be right to break a civil law?" I was educated by the Irish Christian Brothers in Ireland in the 1940s. From Form 1 in Grammar School we were taught about the laws penalising religious beliefs being common in Western Europe since the Reformation. However in Ireland they were much worse. They were directed, not against a religious minority, like the Huguenots in France, but against the majority of the Irish population. Their object was not so much to convert Catholics away from their Roman faith but to reduce them to impotent subservience. Catholics could not teach or maintain schools. It was illegal to send children abroad to be educated. The Brothers made it clear how much we students owed to those priests and parents in 18th and 19th Ireland who defied those laws by conducting 'hedge schools' and worshipping at 'Mass rocks'. So we became schoolyard lawyers from an early age. We could justify all sorts of misdemeanours because we were only breaking 'Penal Laws'. Twenty years later many of my school mates were active the Northern Ireland Civil Rights Movement. The rest is history.

Uncle Pat | 18 February 2016  

Perhaps all honorable Members of Parliament could have a EUREKA moment and reflect on the possibility that this could happen to them and their families, in another time and place in the future.

Sabine Heisswolf | 18 February 2016  

We know that there are those who seek asylum because of unjust persecution and those who do so not because of persecution but for personal preferences. The latter are generally not deprived, homeless and starving, with their children suffering communicable infectious disease. They are domiciled in foreign countries at their own expense and contrive to enter countries like Australia by paying to be transported to the country of their choice, not necessarily the nearest, readily available asylum, without compliance with the usual lawful requirements for admission to a foreign country. Does the same justice apply to both groups? It could be argued that to deny the former is indeed unjust and to accommodate the latter is equally unjust. Justice is a variable commodity and does not necessarily apply in all apparently similar situations. Perhaps the law should embody the same variability, not always an easy thing to do I would imagine. It would seem that the law must first be definitive and then varied according to "primacy of conscience" in particular circumstances as implied in Robert Liddy's post.

john frawley | 18 February 2016  

How do you know the future will appraise your actions today as correct? Roman martyrs and Nazi conscientious objectors have passed the testing of 'history'. What about people in the free West putting out WW2 anti-war leaflets or trespassing on protected sites in support of unilateral disarmament against the Soviet Union? Were they right? Do we cite them as icons in our campaigns of civil disobedience? Is offshore detention evil? Is it bad only if the 'detainees' (who in Nauru will be free to roam) have poor services? It can be argued that by brute force of money, a nominally Christian Australia showed paltry love for the consciences of its penurious 93% Christian neighbours in Nauru, subverting them into becoming a gaol when the Christian ethos of the locals should have been enlisted to make themselves a caring host community for people stateless and under stress, in return for some income, as is the case with our foster-care and host families. Having betrayed Nauruan Christians once, let's, by better services and freedom of movement to 'detainees', redeem ourselves by giving the Nauruans an opportunity to reclaim the Christian dignity lost by being forced to become warders of a penal colony.

Roy Chen Yee | 18 February 2016  

Is a law that reverses the status of something that was done in the past, for example making legal something that was illegal when it was done, automatically a bad law? Does it justify a general attitude of contempt for laws enacted by that government?

Gavan | 18 February 2016  

CONVENIENT IMMORALITY needs to be the title for our Australian policies on asylum seekers. It appears acceptable to both the government and the opposition to hold innocent people hostage in order to deter other desperate people from attempting to reach Australia as asylum seekers. As soon as 'the end justifies the means' became the basis of our reasoning it was inevitable that further immoral activity would ensue. So break an immoral law by all means provided you are prepared to accept the consequences! Perhaps individuals can be martyred so maybe mass social action is what is needed. Who else remembers the stop the Vietnam war rallies that ground to a halt peak hour traffic in Melbourne? But no. It's not happening 'cos it is too convenient to accept the fear mongering, the demonisation of fellow human beings that we have been fed by successive governments. Only an informed and motivated electorate could make a change. Sadly the current scene is of an electorate that is poorly informed and anything but motivated. If only it were not so.

Ern Azzopardi | 18 February 2016  

I see that the words "just" and "unjust" are to be the touchstones of determination as to whether it is proper to refuse to submit to unjust laws. One must be very careful in coming to a conclusion that a law is unjust. In Australia we will find that the legislature is empowered to enact legislation and we have elected them for that purpose. To suggest that the legislators have passed an unjust law requires a judgment to be formed objectively. Any subjective judgment may well not be enough to clothe the decision as to just or not. I would submit that like forming a conscience it is necessary to spend time in research and, if needs be, consultation with others, and have regard to the basis of the role of government and our prima facie obligation to obey them. NO quick judgments.

Adrian Bellemore | 18 February 2016  

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