Law and morality

Is it immoral to break the law? That may seem like a silly question, or a question with an obvious answer. I suggest it is neither. Contrary to popular opinion, I posit there is no moral presumption to obey the law.

I am not asking, ?Why should someone obey the law?? There are reasons to obey the law that have nothing to do with morality. For instance, criticizing the government in North Korea will get you thrown in jail. I think most people reading this column agree that criticizing Kim Jong-il is moral, and yet recognize that you wouldn?t want to do it if you lived in Pyongyang.

Let me start by saying what moral presumptions I think do exist. You have an obligation to respect someone else?s rights. Coercion is normally wrong, and this wrongness is not a function of its legality. For instance, it is wrong to torture someone for fun even if it is legal. This is not to say that coercion is always wrong. There may be unusual circumstances when it is justified. But its evilness creates a presumption against it. The burden of proof is therefore on the person who advocates coercion, to show how the presumption against coercion is overridden in this particular instance.

If law coincided perfectly with rights, such that all illegal acts also violated someone?s rights, then the presumption to follow the law would be self-evident. To follow the law is to respect rights. However, there are many instances in which illegal activity does not violate someone?s rights.

If I told you I stole from someone, you?d want to know a reason why I did that. Specifically, you?d want to know how I overcame the presumption against theft and what unusual factors were at play that allowed me to do something that is normally wrong.

If I?m in North Korea and I criticize Kim Jong-il, I?ve broken the law. Do I have something to answer for, even though I haven?t violated anyone?s rights? Do I have to show how my behavior is an exception to the usual wrongness of law-breaking? I don?t see why.

Here are some of the typical arguments in favor of a moral presumption of the wrongness of law-breaking. I believe they all contain serious errors.

1. Disrespect for some laws will lead to disrespect for truly important laws, such as those against coercion.

I don?t know what data exist on this topic, but this suggestion runs counter to everything I?ve seen in my life. What I will say is that once a person breaks a particular law, and they don?t feel guilty about it, they will be more inclined to break that law again. I have ridden in cars with speeders, and while I?m positive they will speed again, I?m fairly certain this will not embolden them to commit more serious crimes such as theft or murder. I think this is partly because the punishments for those crimes are more severe, but also because the immorality of those acts is also clearer. In short, people acknowledge degrees of wrongness between immoral acts without the law?s help.

2. By breaking the law, you have broken your social contract with the other people in society. By living in this jurisdiction, whether it be the nation, state or county, you have tacitly agreed to follow the rules. Since breaking such contracts is wrong, there is a presumption against law-breaking.

I agree that we should, as a general rule, keep our promises and live up to our contracts. That is why I would agree with this conclusion if the ?social contract? story of government were true. It is not. At no time did we all get together to draw up the laws we live under. In reality, laws are not the product of mutual consent but rather of one group of people coercing another. In short, breaking the law does not mean a contract was broken.

3. Most laws exist to prevent coercion. If you know that someone has broken the law, it is likely they have also coerced someone, which is wrong. Since breaking the law usually means committing a wrongful act, there is a presumption against law-breaking.

I would agree with this if we were simply picking laws to violate at random. That?s not what we?re doing. We?re looking at only those laws where no one is coerced and asking, ?Why is it wrong to violate these laws??

I see no reason to conclude that breaking the law is prima facie wrong (meaning ?wrong at first glance?). If the government wants to coerce a citizen to do something, and the citizen does not want to, the burden of proof is squarely on the shoulders of the government to justify its coercion, since coercion is normally wrong.