The Good, the Bad and the Legal

Ireland was up in front of the UN Committee on Human Rights last week, and received something of a shellacking for our alleged record of human rights violation.

A good deal of it was entirely deserved, but when committee members started saying that Ireland’s anti-abortion laws (still relatively strong, though recently weakened) were in violation of International Covenant on Civil and Political Rights (one of two 1966 treaties that put into force the Universal Declaration of Human Rights), my eyebrows went up.

Not because of the moral question at stake – not having been born yesterday, I find the fact that the UN committee was comprised overwhelmingly if not entirely of people with pro-choice views… unsurprising.

No, I was perplexed because the International Covenant on Civil and Political Rights doesn’t mention abortion at all, explicitly or implicitly. I blogged on the weird absence of this fact from the discussion over at The Iona Institute:

…Would anyone relying on the Irish media coverage of the hearings have any way of knowing what (the treaty) actually says? Was there much reporting on the actual legislation or its content? Nope. And without that information, this whole discussion, and all the fulminating and indignation that’s accompanying it, is so much smoke in the wind.

The whole thing got me thinking about a question that’s bothered me for some time. Why do people involved in public debates often spend so much time arguing about legality as a proxy for arguing about morality?

In debates over Obamacare’s constitutionality, the lawfulness of “enhanced interrogation” and the degree to which the Iraq War violated international law, it’s striking how often “I believe that behaviour/policy x is wrong” coincides with “I believe behaviour x is illegal/unconstitutional”.

I can’t find the link, but when the Supreme Court was considering Obama’s health-care law, Andrew Sullivan said something to the effect that he supported the law, but on balance reckoned it was unconstitutional. But his stance was rare indeed – people who thought the law was bad policy were much more likely to think it was unconstitutional, and almost none of the law’s supporters shared Sullivan’s take.

Sometimes this is just a matter of pragmatism. America’s constitution is (by design) really, really hard to amend, and this can incentivise people to indulge in a bit of creative thinking about what is and isn’t compliant with it.

If you strongly support gun control, you’ll have a strong incentive to advocate for a reading of the constitution that doesn’t render most firearms laws invalid. If you think Obamacare is going to do irreparable harm to the United States, that will be a powerful (though often subconscious) influence on you to emphasise those bits of the constitution that support your conclusion and to gloss over those that don’t.

But sometimes pragmatism has little or nothing to do with it. Roe VS Wade is settled law in the United States, and it would be perfectly safe for supporters of the abortion regime it instituted to admit that the legal reasoning behind it was patchy to nonexistent (and some of them have done so). But you’re about as likely to find a pro-choice Senator or a Planned Parenthood staffer saying such a thing as you are to discover the Fourth Secret of Fatima. There’s a very similar dynamic at play in Ireland with the X Case, which legalised abortion on the grounds of suicidal ideation in the pregnant mother). This isn’t about protecting the law from repeal – it’s about using the legality of something to advocate for its goodness. A rightly-decided Roe has more moral weight than a wrongly-decided one, even if the ultimate conclusion is identical. The idea that the law is good in itself rather than valuable only insofar as it reflects The Good is what I’ve come to call “Law-of-the-Land-ism”. 

Take the recent case of Bogdan Chazan, the Polish doctor fired from his position as director of the ironically-named Holy Family Hospital in Warsaw after he refused to carry out an abortion. Here are Prime Minister Donald Tusk’s thoughts on the matter:

“Regardless of what his conscience is telling him, [a doctor] must carry out the law. Every patient must be sure that […] the doctor will perform all procedures in accordance with the law and in accordance with his duties.”.

In Ireland, an appeal to “the Law of the Land” (and it’s always that exact phrase) is  a sort of go-to stock phrase for current affairs anchors and presenters (to say nothing of politicians). They usually present it as though they’re making some great revelation.

“But if this law requiring priests to break the seal of confession is passed, won’t you have to obey it? It will be the Law of the Land.”

“How can you vote against an abortion bill that’s constitutionally mandated? You have to obey the Law of the Land, not the law of the Church.”

The TD (member of parliament) or priest getting grilled generally responds by trying to argue that what they’re doing actually is in accordance with the law. Now, they’re often right, but I’m just as often left wondering why they don’t just say “well, if following my conscience is illegal, I suppose I’m just going to have to … break the law.”

SHOCK! HORROR! Break the law, you say? The Law of the Land? What are you, some kind of theocratic subversive? (Lest you think I’m exaggerating, an independent Senator accused parliamentarians who wanted to vote against abortion legislation of trying to stage a coup.)

Well, no. The thing about religious teaching is that people follow them because they believe they’re true. It’s not like religious people are choosing whether to follow the rules of one authority or another – they’re choosing between obeying the State and obeying their conscience.

Gandhi did not follow the law of the land. Martin Luther King did not follow the law of the land. Nor did Lech Walesa. And here’s the thing: everyone is glad that they didn’t. Everyone concedes that there are some unjust laws worth disobeying – they only become Law-of-the-Land-ers when they agree with the Law of the Land. So why bother with it at all? Why not just argue that people should do the right thing?

Well, if you’re a social liberal living in a Western democracy, you’ll probably find that as time goes on the law corresponds more and more to your moral worldview. And from there the temptation to invest the law with absolute value is great indeed. Damon Linker nails it:

From the dawn of the modern age, religious thinkers have warned that, strictly speaking, secular politics is impossible — that without the transcendent foundation of Judeo-Christian monotheism to limit the political sphere, ostensibly secular citizens would begin to invest political ideas and ideologies with transcendent, theological meaning.

Put somewhat differently: Human beings will be religious one way or another. Either they will be religious about religious things, or they will be religious about political things.

With traditional faith in rapid retreat over the past decade, liberals have begun to grow increasingly religious about their own liberalism, which they are treating as a comprehensive view of reality and the human good.

But even from within this frame it only takes a couple of moments thought to realize that Law-of-the-Land-ism is silly.

Imagine if Ireland was the only country in the world that outlawed slavery, and that in doing so it breached several international treaties. Who would seriously argue that Ireland should change its stance?

The rule of law is essential for any functioning society, and the state should try and ensure that people follow it – I’m not advocating a return to the wild west.

But for an individual, if following the law means going against your conscience on some fundamental matter, you have to disobey the law. I don’t think I’m being even remotely controversial here – to support the alternative is to flirt with totalitarianism.

I’m always loath to completely rubbish an idea or an argument that people sincerely hold (hey, I haven’t given up on the possibility that there might be something good in Objectivism!). But the idea that you should ever obey the law of the land if doing so would violate your conscience is self-evidently absurd, and everyone on every side of every argument would be better off jettisoning it. 

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I’m uncomfortable just ignoring the horrible events in the Ukraine and Gaza and breezily writing about other things – but I don’t think I’m well-informed enough on the underlying dynamics in either situation to write anything particularly useful or constructive. All I can do is pass on the calls for prayer.