“All lawful modes of expressing opposition to this principle had been closed by legislation, and we were placed in a position in which we had either to accept a permanent state of inferiority, or to defy the Government. We chose to defy the law.”
(Nelson Mandela speaking at his trial in Rivonia, 1964).
I can still remember as a law student being asked to debate whether it was ever justifiable to break a law on moral grounds. As a South African law student living under the evil of apartheid laws, this became more than an academic exercise, as we did our utmost to flout as many of those laws as we could, seeing it as our moral duty to do so.
My simplistic understanding of this dilemma essentially boiled down to what my lecturer called the ‘positivists’ versus the ‘natural lawyers’. The positivists argued that law and morality do not mix, and whilst it is permissible to challenge laws we see as unjust, and seek to change them, it is not permissible to break them. The law is the law and it must be obeyed. The natural lawyers, on the other hand, argued that the laws that govern us are an embodiment of our moral values, and accordingly if parliament passes a law that conflicts with these moral values, it is not a law at all, and therefore one is not breaking the law when one refuses to obey it.
Simplistic, as I said, and my jurisprudence professor must be spinning in his grave, but that was the limit of my understanding at the time. The dilemma raised by this approach, which is the point being pushed by the positivists, is by whose morality do we judge a law? As morality is so subjective, to allow people to disobey laws on moral grounds is a recipe for chaos and anarchy. It might be easy to point at something so clearly evil like an apartheid law, and say “disobey it” but even then, one found people who didn’t have a problem with the principle of “separate but equal”. Their only problem was that the different races were not being treated equally in practice. Of course the racists had no problem at all. So even over something that seems clear cut, like a racial discrimination law, there is still the potential for debate amongst supporters and opponents.
What chance do we have, therefore, when we consider something like our water laws or our electricity laws? Is being made to pay for water so fundamentally wrong that you are morally obliged to refuse to pay? There will always be the argument that we are not being made to pay for the water as such, but rather the pipes that carry it, with the fact that somebody is making a huge profit out of water meters seemingly the only moral component of the debate.
Similarly, are the actions of an organisation like EirGrid, which is wrecking our health, our economy and our environment, so morally wrong that we should lie down in front of their diggers or chase them out of our communities when they skulk around pretending to be bird watchers? Again, there are those who argue that we need a better electrical infrastructure to attract investors, forgetting that our high electricity prices are in fact chasing them away, or that the damage being done to the environment will impact on the health and welfare of future generations.
Interestingly enough, the Irish Constitution is very much a natural law document, largely as a result of the Church’s influence (and the idea of the law coming from God – which is one of the schools of thought in Natural Law).
In the Irish Constitution, the Fundamental Rights identified in Articles 40-44 are heavily influenced by the natural law school. This has been confirmed by our courts. For example, in the seminal case of Ryan v Attorney General  IR 294 (putting fluoride in the drinking water), natural law was relied on by the Supreme Court as a source of implied rights. If you read that judgment, you notice phrases being taken from our Constitution which are strongly associated with natural law: “natural”; “rational”; “inalienable and imprescriptible” and “antecedent and superior to all positive law”.
Does this mean that the Constitution will protect us if we break a law on moral grounds? That’s a tough one to answer. It also makes you think. Next year we will be celebrating the 1916 Rising, glorifying those brave men and women who broke every law in the book, largely on the grounds of moral imperative.
My colleague Tom Baldwin has been very bravely conducting this selfsame discussion, in the face of much opposition from a large segment of the legal profession, in his consideration of whether there is a moral obligation to refuse to pay for water, which many have translated as an invitation to break the law. See his blog on this at https://legaleaglestar.wordpress.com/2015/01/06/right2water-civil-disobedience-and-peoplepower-in-ireland-2015/
On that point, and by way of digression, there is a very strong argument that by refusing to pay for water you are not breaking the law as such – not in the criminal sense at least. By refusing to pay for water you are refusing to settle an account, for which you can be sued. The Water Services Act seems to confirm this, providing that Irish Water can sue you in civil court for any outstanding payment and/or as a last resort turn off your water. There is no mention in the Act of criminal sanctions. It might affect your credit rating, but it should not result in a criminal conviction.
However, these technical arguments, much loved by lawyers, avoid the bigger question – what should the Irish People do in the face of this raft of what many perceive to be morally corrupt laws? And if you would balk at the notion of calling these laws morally corrupt, then allow the Marxist to ask what should we do with these laws aimed at benefitting a privileged and wealthy few, but with consequences that will harm us and our children?
At the very least I think that we as a people need to start looking more closely at the philosophy and policies that underpin the laws in this country. We must not be scared to say: ‘Now hang on a minute, you need to tell me how that is going to benefit the Irish People, as opposed to the owner of a private wind farm or the Minister’s pension fund.”
As a society we need to develop that capacity for challenge and reflection on the things that are being done to us by the people that we elected into power. At the moment we simply allow politicians to do our thinking for us on matters politic. Until we get off our intellectual arses and learn to think for ourselves, we deserve everything that we get from what is perceived by many to be a morally corrupt government.