Breaking the Law

breaking law 2
“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).

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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 [1965] 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.

About Neil van Dokkum

Neil van Dokkum (B. SocSc; LLB; LLM; PGC Con.Lit) Neil is a law lecturer and has been so since arriving in Ireland from South Africa in 2002. Prior to that Neil worked in a leading firm of solicitors from 1987-1992, before being admitted as an Advocate of the Supreme Court of South Africa (a barrister) in 1992. He published three books in South Africa on employment law and unfair dismissal, as well as being published in numerous national and international peer-reviewed journals. Neil currently specialises in employment law, medical negligence law, family law and child protection law. He dabbles in EU law (procurement and energy). Neil retired from practice in 2002 to take up a full-time lecturing post. He has published three books since then, “Nursing Law for Irish Students (2005); “Evidence” (2007); and “Nursing Law for Students in Ireland” (2011). He is an accredited and practising mediator and is busy writing a book, with Dr Sinead Conneely, on Mediation in Ireland. His current interest is Ireland’s energy policy and its impact on the people and the environment. He is also researching the area of disability as a politico-economic construct. Neil is very happily married to Fiona, and they have two sons, Rory and Ian.
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15 Responses to Breaking the Law

  1. Richie says:

    I am not a legal eagle (obvious from my results) but it seems to me that the laws of the land have slowly changed over time. In the past laws were brought in to protect people and their properties. It seems now that the laws being brought in are only there to serve the elite and protect their property. So if we choose to disobey a law on moral grounds, then whose morality is offended. Would a wealthy business man have the same moral values that I have or is it the fact that he is rich so his morals are more important then mine. So rather than arguing on the moralities of certain laws maybe we should just outlaw morals altogether.

  2. Peter Sweetman says:

    I practice a belief that you cannot break the law and expect to use the law. ie if you break an injunction you admit that “All lawful modes of expressing opposition to this principle had been closed by legislation,”

  3. Peter Sweetman says:

    This is as it should be, for our Nation is founded on the principle that observance of the law is the eternal safeguard of liberty and defiance of the law is the surest road to tyranny. The law which we obey includes the final rulings of the courts, as well as the enactment’s of our legislative bodies. Even among law-abiding men few laws are universally loved, but they are uniformly respected and not resisted.
    Americans are free, in short, to disagree with the law but not to disobey it. For in a government of laws and not of men, no man, however prominent or powerful, and no mob, however unruly or boisterous, is entitled to defy a court of law. If this country should ever reach the point where any man or group of men by force or threat of force could long defy the commands of our court and our Constitution, then no law would stand free from doubt, no judge would be sure of his writ, and no citizen would be safe from his neighbors.
    JFK AND RFK

    • Amen to that, with the important rider that for that ideal to be true, all persons must have equal access to the law. That unfortunately is another ideal fast disappearing over the horizon.

      • Peter Sweetman says:

        Absolutely, we only have any real access under 2003/35/EC and even that is not adequately transposed.

  4. Francis Clauson - living near a Nordex Windfarm says:

    What happens if I am ploughing under the wind farm or working in the woodlands near by. This would be “my place of work”. In the case of a farm even when I am not working there its still my place of work as defined by the HSA.

    So how come a wind farm is only a place of work when someone is actually working there?

    Second point which is probably more important – the state has a duty of care – if the Nordex Safety manual states
    FALLING TURBINE PARTS
    In case of a fire in the nacelle or on the rotor, parts may fall off the wind turbine.
    In case of a fire, nobody is permitted within a radius of 500 m from the turbine.

    Then there must be a system which once fire is detected enforces the exclusion zone (e.g. a fire alarm at 500M which states if red light flashes and klaxon sounds you must not approach any closer than 500M). If this is not present then either the wind farm or the state must be acting with some form of negligence because they have failed to follow the manufactures instructions that “nobody is permitted within a radius of 500m” when there is a fire,

  5. Peter Sweetman says:

    very interesting re CoIllte workers in a CoIllte wind farm

    • The Health and Safety Authority is well aware of its responsibilities under the Machinery Directive. This is an excerpt from the HSA website:

      “Compliance by designers, manufacturers, importers or suppliers with the Machinery and other Directives is also required under section 16 of the Safety, Health and Welfare at Work Act 2005.

      Regulation 28(a) of the 2007 Safety, Health and Welfare at Work (General Application) Regulations [S.I.No.299 of 2007 ] requires employers to ensure that any work equipment provided for use by employees complies with any relevant enactment implementing any relevant European Directive.

      Whilst the Directive sets out various technical requirements, it is useful to check if there is a harmonised standard for the machine in question. Machinery manufactured in conformity with such a standard, references to which have been published in the Official Journal of the European Union, are presumed to comply with the essential health and safety requirements of the Directive, covered by the standard. Information on harmonised standards can be found at: http://ec.europa.eu/enterprise/sectors/mechanical/documents/standardization/machinery/index_en.htm

      Standards can be purchased through the National Standards Authority of Ireland. {http://www.standards.ie/}

      In Annex IV to the Directive, there are 23 categories of machinery, listed in the appendix to this guidance, which are subject to specific conformity assessment procedures. Purchasers of such equipment should seek evidence, if not already provided, that the equipment has been appropriately assessed to one of these procedures.

      The Health and Safety Authority is the competent authority for the Machinery Directive. If purchasers or users of machinery come across products they believe to be dangerous or non-compliant with the Directive they are requested to contact the Authority so that follow – up action can be taken with the manufacturer or supplier.”

      http://www.hsa.ie/eng/Publications_and_Forms/Publications/Information_Sheets/Guidance_on_the_Purchase_of_New_Machinery_.pdf

  6. Francis Clauson - living near a Nordex Windfarm says:

    I have now read the Occupiers’ Liability Act, 1995 – section 4 – Duty owed to recreational users or trespassers
    ….. (b) not to act with reckless disregard for the person or the property of the person, …..

    I would think that a wind farm owner would have “acted with reckless disregard” because of lack of signage at every boundary at which a person might cross in to a site would be in breach of section 3 & 4 of the Act.

    Given the manufacture has explicitly stated that 500M is the safety margin their probably could be no mitigating instances where the recreational user or trespassers could have know not to go closer that 500M.

    I am sure you have all seen those signs around buildings warning of when the occupier is and is not liable for damages under the act.

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