Unforgivable Laws
The Big Picture Home Page Previous Big Picture Column Next Big Picture Column
Broken Laws: A Three-Part Series
Part I: Unforgivable Laws
In his last year’s biography of Bill Clinton, Nigel Hamilton wrote incisively of the effect of the Vietnam War on a whole generation. More specifically, on the combination of the War and the Draft. Together with the Draft, the War “would destroy the self-respect of an entire generation of Americans.” Some, like Clinton, would lie and cheat to avoid involving themselves in an enterprise both morally bankrupt and dangerous. Some, like his contemporary Bob Kerrey, would go and serve, though many who served and survived, like Kerrey, turned out to be as wounded by the atrocious things they had come to do as by what was done to them.
Many who avoided service did so by dint of shameful deception, even those with the noblest motives; many who served ended up doing things that will haunt their consciences to their dying day, even those with the noblest motives. Neither group, those who served or those who evaded and resisted, has ever received the respect it deserves, in large part because so many within each group ended up individually morally compromised, and in part because politicians successfully sowed the seeds of resentment between the groups, each of which contained some of the best of their generation.
What made the anguish of the dilemma so acute for so many Americans was the role of the law. The case can be made that the War itself was illegal and/or unconstitutional, but it is harder to argue that the Draft was illegal. If the Draft represented the rule of law, however, it typified that rule gone insane. It was a law applied with great firmness to force multitudes of young men into dishonesty, exile, or morally questionable and traumatic combat in a war whose very legitimacy was gone, at least by the end.
My generation, roughly speaking those who were Draft-eligible during Vietnam, learned, courtesy of the Draft (and other laws like those which still existed at the time enabling racial segregation), that the law was just not an absolute. Our own nation, it turned out, was capable of passing laws as unforgivable as Slavery, Apartheid, and the 1935 Nuremberg Laws (which laid the statutory groundwork for the later Holocaust). For many of us, no law could ever again automatically command our assent or obedience merely because it was the law. Whatever logically went with that perception had to be accepted, while whatever was logically inconsistent with that position had to be rejected. Most of us have spent a lifetime thinking through those implications.
One thing was for sure. It was not a wholehearted anarchism that replaced unthinking deference to the law in most of us, just a realization that there were commitments of the heart and mind that overrode the claims of certain laws upon us, and even the legitimacy of the legal system and the country that enacted them. Many of us quoted E.M. Forster’s famous comment that if he had to choose between betraying his friend or his country, he hoped he would have the guts to betray his country. Not that we entirely believed it. For most of us, it would depend on what our friend and/or what the country had done to put such a choice before us. If the country had betrayed the friend (as many of us felt the U.S. had done to many of our friends by drafting them to fight in Vietnam), fine, we could with a clear conscience betray the country back to save him. (There were doctors, for instance, who gave opinions qualifying people for deferments the doctors knew they didn’t really deserve, medically speaking.) If our friend had violated laws we believed in, though, most of us would probably have aided law enforcement. (If Forster ever called the cops on anyone for any reason, after all, he was in some sense betraying someone’s friend, even if it wasn’t his own.)
But one thing was clear to many of us who came to think and feel during that era: we could never again give our allegiance to any and all laws simply because they were duly enacted. We might later on speak of the rule of law, but it would no longer signify any and all laws. If a law forbade something we felt was vital, or mandated or enabled something we thought abominable, whatever compliance we might happen to provide would be a matter of expedience only. And we would recognize (whether consciously or not) that our pledge of allegiance was to whatever we personally believed in, and to our country only to the extent it stood for what we believed in.
The implications were paradoxical, to say the least. For it is hard to deny the importance of the rule of law. And if we do not subscribe to the whole law, to every jot and tittle, if we recognize the right of the individual conscience to pick and choose among laws, then we are inviting some degree, maybe a substantial degree, of chaos. Even if we restrict the moral right not to comply to matters of gravest conscience, we contemplate great unrest. The conscientious draft resister claims the right not to report for induction, fine, but then the anti-abortionist claims the responsibility and hence the right to assassinate certain physicians whatever the law says, and the Confederate claims the right to secede, and the Al Qaeda hothead claims the right to ditch planes in the sides of skyscrapers. If enough of us assert the primacy of our convictions over the law, we could be in very serious trouble.
One response to this paradox has been to embrace the notion of passive resistance and conscientious objection. It is often articulated in this fashion: the individual has the right to follow his conscience and not comply with the law, mainly by passive resistance, but the State has the countervailing right to punish noncompliance, and it is the duty of the objector to accept that punishment, in part to create the moral spectacle of resistance and repression, the better to encourage public attention and thought to the resister’s views. However, from the perspective of most objectors, the State does not in fact have the moral authority to punish noncompliance with unforgivable laws any more than it has the moral authority to legislate unforgivably. It may be a fine thing to accept punishment and provide a moral example; but it may be a finer thing yet to frustrate an illegitimate legal policy by not complying and still getting away with it. Which is better: that a bad law be rejected through public debate, or that a bad law be robbed of even the appearance of legitimacy through desuetude and ineffectiveness?
For those of us who are lawyers, the problem is even more vexing. We see, more frequently than most, how unforgivable in application many of our laws are. Yet we are the guild charged with expounding, applying, and, yes, defending the law. We go through rituals of respect for the rule of that law (rising, for instance, to salute the judge entering the courtroom even when we know that personally the particular judge may merit no respect at all). And we understand how important this is, because our laws literally make everything else good possible. The laws protect us, and it is prudent and wise for us to protect them back.
Robert Bolt’s play A Man for All Seasons about 16th Century lawyer Thomas More nicely summarizes the issue. More refutes his son-in-law Roper, who asserts the primacy of conscience over all laws, thus:
Where would you hide then, Roper, the laws all being flat? This country’s planted thick with laws, Man’s laws not God’s. And if you cut them down, … do you really think you could stand upright in the winds that would blow then?
The fact is, none of us could stand upright in such a wind. So we recognize we cannot cut down all the laws in our plantation, even in the name of conscience. We recognize also that the laws we might wish to protect, others would regard as vital to tear down. And if I subvert one law and you subvert another and someone else subverts a third, after a while the cumulative effect is about the same as Roper cutting down everything.
In any case, it is not by any means just a matter of self-interest, however enlightened. Most of us wish our society well. We care about our brothers’ and sisters’ well-being. It is easy to accept that for everyone else’s sake we should follow most laws, even ones with which our personal consciences differ – what I shall in these pieces call “debatable laws.” So however furious a bad law may make us, we must think long and hard before declaring it unforgivable and acting accordingly. There cannot be too many laws at any one time that too many of us refuse to follow and/or which challenge for us the legitimacy of our society’s law-making institutions.
How shall we know them, then, those few laws that are truly unforgivable? The laws that are so wrong they challenge the very legitimacy of law itself? There is no pat answer. Laws that marginalize people are good suspects: Nuremberg laws or Jim Crow or Japanese internment laws. Laws that constitute unacceptable assaults on people’s dignity or autonomy like the Draft, or the laws forbidding the willing suicide of the terminally ill, or assistance thereto. Cruel and unusual punishments. The interesting thing, though, is how quickly one person’s list of unforgivable laws will come to include laws may seem to another person to be merely debatable, and to yet another to be sound policy. Examples: laws forbidding or enabling gay marriage, enabling the death penalty, protecting abortion, denying the use of medical – or recreational – marijuana, asserting or frustrating governmental control over firearms, establishing our nation’s war machine.
Declaring a law unforgivable, then, is the gravest and the riskiest of matters. Before we do it, we should recognize the wide variety of people in whose company it places us. Not just Mahatma Gandhi, but also Mohammad Atta. Not just Martin Luther King but also the Unabomber. There is not much distance between John Brown and Timothy McVeigh. In short, we must be very, very careful. At the same time, notwithstanding we will never agree on what they are, there are limits that a government does not step over without, to that extent, destroying its own legitimacy. And when it does, we have higher allegiances. My generation knows.
Copyright (c) Jack L. B. Gohn
The Big Picture Home Page Previous Big Picture Column Next Big Picture Column