Sed Lex?

Thoughts on Ilya Somin’s defence of non-enforcement of the law

In a recent Volokh Conspiracy post, Ilya Somin argues against the common view that laws ought to be enforced and obeyed regardless of their moral flaws. On this view, the existence of a law is warrant enough to inflict punishment on anyone who breaks it. Professor Somin cites the case of Tammie Hedges, a woman from North Carolina who looked after two dozen pets whose owners could not take them with them when fleeing the recent hurricane and, for her troubles, has been arrested and charged with 12 counts of practising veterinary medicine without a license.

Professor Somin argues

that the mere fact that there is a law on the books does not mean that it should be enforced, and certainly does not mean we should pursue all violators. This is easy to see in a case like that of Tammie Hedges … . But the same principles apply far more broadly.

Professor Somin refers to the historical example of the legislation that required fugitive slaves to be returned to their “owners”, pointing out that “[t]oday, we praise … antislavery activists who” broke them, “and condemn government officials who tried to prosecute” these activists. And, in our own time, Professor Somin cites immigration and anti-drug laws as examples of legislation whose enforcement deserves condemnation, not praise.

I have a great deal of sympathy for the position Professor Somin advances, but I think that things are a bit more complicated than he lets on. Professor Somin recognizes that “there is room for reasonable disagreement about which laws are justifiable to enforce”, but does not consider the implications of such disagreement beyond saying that “[i]n a world with numerous unjust laws and ethically suspect politicians, we cannot accept a categorical ‘enforce the law’ approach to political morality”. Accepting that this is so does not really make the question of when it is possible to excuse or justify non-enforcement ― and of who is supposed to be making such judgments ― go away.

Consider the subject of my last post: the prospect of enforcement by Québec’s Chief Electoral Officer of legislation that effectively bans interventions in election campaigns by civil society actors, except if a “periodical” or a “radio or television station” agrees to carry it free of charge, as part of its news or editorial content, against an environmentalist NGO, Équiterre. Équiterre’s offence is that it has had the temerity of posting, on its own website, a questionnaire detailing the policies of the main provincial parties on various environmental issues, and expressing approval or disapproval of these positions. I argue, in my post, that Québec’s legislation outlawing such perfectly justifiable attempts to influence public opinion is draconian, and that it should be repealed and/or challenged in court and declared unconstitutional. Yet I also say that the Chief Electoral Officer is justified in enforcing the law until, in one way or another, it is law no longer. I made the same argument in a very similar situation four years ago, during the last provincial election campaign, and criticized the Chief Electoral Officer for backtracking on the basis of what I thought was a tortured interpretation of the applicable legislation.

On Professor Somin’s view, I am probably wrong. I think that the law at issue is morally unjustified. Why should I want the authorities to enforce it and put the people who quite rightly object to it to the trouble, expense, and uncertainty of litigating against it or lobbying for its repeal? If the Chief Electoral Officer declines enforcing an unjust law, shouldn’t I be happy? The reason I’m not has to do with the interaction between law and reasonable disagreement.

I have strong views about the injustice (and unconstitutionality) of Québec’s legislation, but others do not share them. The leader of Québec’s Green Party, for instance, has denounced what he sees as “meddling” by Équiterre and other environmentalist groups in elections, claiming “these groups have chosen to exclude the Green Party of Québec from their analysis”, and that this “exclusion … is a political act that undermines our credibility among the voters in the midst of an election campaign”. This nicely captures the policy of Québec’s legislation (and its federal analogue too, albeit that the latter is less draconian): achieving fair competition among political parties, at the expense of everyone else’s liberty. Plenty of people support this policy, at least in the abstract (though many get queasy when they discover that it can actually be applied to people and groups with whom they sympathize).

As I said in my recent talk on the Trinity Western cases at the Centre for Constitutional Studies, in a pluralistic society we constantly disagree about values and justice, and the law for the time being is the one thing we have in common. I take Professor Somin’s point that law is not like the rules of a club that we have knowingly joined and are free to leave; its claims to our assent are incomparably weaker. Still, we do benefit from the existence of this common reference point, which allows us to maintain a well functioning community despite our sometimes radical disagreements.

Consider, for example, one of Professor Somin’s example: immigration laws. I happen to agree with him that they are unjust in preventing persons “fleeing violence and oppression” ― includig economic oppression that typically doesn’t give rise to an entitlement to refugee protection ― from obtaining safety. Sadly, plenty of people think that the problem with existing immigration laws is the opposite: they still allow some people to come to Canada or the United States. If these people take it upon themselves to remedy what they see as injustice ― say by preventing prospective refugee claimants from reaching a border, or by hacking into a government computer system to destroy would-be immigrants’ applications ― how would we feel about that? We want, I think, to be able to say more than “your sense of justice is wrong”, and get into a shouting match about whether we or they are right. Pointing to the law is the best we can do ― but we can only do it if we too are law-abiding. The point, of course, is not that the existing immigration law is, substantively, a sort of half-way house between the wishes of open borders types and wall-builders; it’s that, to repeat, it is a common reference point that exists independently of our subjective views about justice.

Now, it is essential that opportunities to revise the law exist, and highly desirable that some of involve counter-majoritarian procedures, such as judicial review of legislation. The rules that provide these opportunities are valuable ― indeed, probably more so than any substantive laws by themselves ― and worth supporting. When people disobey the law instead of using these procedures, they undermine not only the law that they are actually disobeying, but the whole system of law as the means of provisional resolution of our disagreements with our fellow citizens, as well as the normal procedures for revising this settlement from time to time.

This is especially so when the people at issue are not ordinary citizens, but the very persons charged with implementing the law. Professor Somin does not really address this distinction, but I think it is important. Civil disobedience by a citizen (or a business) can be admirable, but I am very skeptical indeed of civil disobedience by officials. Unlike citizens, officials who decline to enforce the law, if they do it consistently, can effectively change the law ― even though in most cases they are not authorized to do so. This subversion of the normal procedures for changing the law, whether democratic or judicial, risks doing more harm in the long run than it does immediate good.

But of course it is just as, and perhaps more, likely, that the disregard of a law by official charged with enforcing it will not consistent and even-handed. Sympathetic law-breakers ― sympathetic, that is, either in the eyes of the officials themselves, or in those of the public, like Équiterre ― will get a pass, while others will not. How many of Équiterre’s defenders would take the same position of the Chief Electoral Officer went after a right-wing think-tank? Non-enforcement of the law is likely to be arbitrary, and that too is a long-term evil that has to be weighed against any short-term benefits it may have in particular cases.

Now, of course there are extreme cases. Slavery is one. In a very different way, of course, the story of Tammie Hedges is another ― extreme in its senselessness if not in its savagery. As I said at the outset, I am sympathetic to Professor Somin’s view that law does not have an automatic claim to obedience ― certainly not from citizens, and perhaps not even from officials, though I think that it is often the case that an official ought to resign from his or her position rather than subvert the law by selective non-enforcement. The trouble is that any line one draws between extreme cases is likely to be subjective and blurry. I don’t have a good way of dealing with this problem, which probably takes away from whatever force my objections to Professor Somin’s position might otherwise have had. Still, I wanted to explain my disquiet in the face of what strikes as a far-reaching argument against the authority of law. “The law is harsh, but it’s the law” can indeed be a callous and highly objectionable position. And yet, the law has a value of its own that appeals to justice are liable to disregard, and it’s a value that I would like to hold on to, even though I too think that many of our laws, considered individually, are seriously unjust.

Uber and Civil Disobedience

I have a new post over at the National Magazine’s Blog, arguing that to the extent that Uber and other firms of the sharing economy breach the laws that prevent them from offering their services to the public, we should assess their claims that such laws are unjust on their merits, instead of rejecting them out of hand as either lawless or self-serving. Uber is engaged in a form of civil disobedience, acting on a principled position that the restrictions on taxi services that municipal authorities in various countries, including here in Canada, invoke to stop its operations cannot be justified in a free society. The fact that it stands to benefit financially if these restrictions are lifted is simply irrelevant to the justice of its claims. Civil disobedience, as a rejection of the authority of the law, is of course disquieting ― perhaps especially to lawyers ― but not always unhealthy. For, as Henry David Thoreau long ago observed, “[l]aw never made men a whit more just; and, by means of their respect for it, even the well-disposed are daily made the agents of injustice.” Anyway, there’s quit a bit there, so I’d encourage you to read the whole thing.

There was a story that has, at first glance anyway, nothing to do with Uber that would have liked to speak about, but couldn’t think of a way to work into the post: that of a family from Cornwall, in Ontario, also engaged in civil disobedience against a municipal by-law being applied to stop its children selling worms to neighbourhood fishers. They haven’t, in case you’re wondering, torn down their house to build a worm factory. The kids are digging the worms out of the ground in their own backyard, and selling them from their own front lawn. No matter. The city is fining them 250$ a day. The parents say they will keep paying the fines ― much like Uber does for its drivers, Frank Roncarelli did for Jehovah’s witnesses, and Thoreau’s aunt did for Thoreau.

Regulations preventing people ― from the children of Eastern Ontario to the zillionaires of Silicon Valley ― from putting their work and enterprise at the service of their fellows, near or far are innumerable. They are passed, sometimes out of sheer foolishness, sometimes out of nimbyism, sometimes at the behest of those who stand to benefit from limits on competition, without attracting much attention, and remain in force indefinitely, so long as no one raises a stink about them. Indeed, raising a stink is the only way to have some of them repealed. We should not condemn the hardy few who are willing to do so as lawless or self-interested. We should be grateful to them instead.

Defying Shame

A number of institutions in Québec, notably Montreal’s Jewish General Hospital and the English Montreal School Board, have announced their intention to defy the Charter of Shame prohibiting their employees from displaying “conspicuous” religious symbols ― if, that is, the Charter is ever enacted. In other words, these institutions are threatening to engage in civil disobedience, in response to what they see as a law that goes against their core values. Although I fully agree, and have argued at length in previous posts too numerous to link to, that this law would be a great iniquity, I think that institutional civil disobedience in response to it would raise difficult questions, which have not so far been discussed.

Some of these questions are of the kind anyone who considers engaging in civil disobedience ought to address. The most general and fundamental one is what is it that justifies one in defying democratically enacted law. Of course, that question has been answered before ― perhaps most famously by Henry David Thoreau and Martin Luther King Jr. Interestingly, both Thoreau and King gave fairly elaborate (and quite different) explanations of what they regarded as the government’s proper role, in addition to saying why they thought the governments to which they were subject strayed so far from it as to justify disobedience. However vague, these explanations make it possible to judge their actions. As has been said on a grander but similar occasion, “a decent respect to the opinions of mankind requires that they should declare the causes which impel them” to take the positions they do.

But there is also a more specific question to be answered by those who would defy the Charter of Shame. Are they justified in engaging in civil disobedience in a situation where they can, instead, address themselves to the courts and have the law they intend to defy struck down? Thoreau’s differences with government of the United States were not of the justiciable kind; King faced a judiciary that was unwilling to give him the justice to which he was entitled under the U.S. Constitution. By contrast, there is every reason to believe that the The Charter of Shame will be invalidated by the courts. Why break the law, then, rather than use the procedure it puts at one’s disposal to obtain the result one seeks? It is a quicker way to that result, perhaps, but if one believes in the Rule of Law, must one not sometimes take the longer, but lawful road? It is one thing to engage in civil disobedience when that road is blocked; it is another one, and arguably subject to a heavier burden of justification, to do it when the road is wide open.

And then there questions which arise because those who now proclaim their intention to defy the Charter of Shame are not individuals, but organizations. Does it even make sense for an organization to engage in civil disobedience? Civil disobedience is closely linked to conscience ― and a organization might not have a conscience, as we are frequently reminded these days by those, on the American left, who angrily insist that corporations can have no right to free speech or free exercise of religion. Now, Thoreau at least had no doubts in this respect (though the point, I think, is rather tangential to his argument): “[i]t is truly enough said,” he wrote, “that a corporation has no conscience; but a corporation of conscientious men is a corporation with a conscience,” and I am inclined to agree with him. However, this position is not entirely free from difficulties, some of them similar to those I discussed here. And note that my rhetorical move of speaking of limits on the government rather than individual rights, which I suggested as a solution to the corporate rights conundrum, does not work in the case of civil disobedience, which is very much an exercise of individual freedom, not the imposition of a limit on the government.

Perhaps more importantly, though, even if one concludes, as I think one should, that organizations ― Thoreau’s “corporations with a conscience” ― can, in abstracto, engage in civil disobedience, one should still think about their moral responsibilities in doing so. A person who engages in civil disobedience must be prepared to go to prison for it, as Thoreau and King were. But if such a person is indeed put to prison, the cost of his standing on his conscience is borne by him alone ― and maybe by his family. An organization such as the English Montreal School Board or the Jewish General Hospital cannot be imprisoned. But they can be deprived of funding, and perhaps even dissolved, both of which would hurt their employees whom they are trying to defend, and the people taking care of whom is their main job. As a quip in Soviet times had it, “Galileo’s neighbour scientist also knew that the Earth moved, but he had a family.” A principled stand that is commendable in a solitary individual like Thoreau, might not be for those with responsibilities to others, and especially for organizations with responsibilities to thousands of vulnerable people.

All that is not to say, conclusively, that the English Montreal School Board and the Jewish General are wrong ― only that their position raises questions worthy of serious thought. Of course, it may well be that this position is nothing but posturing, cost-less so long as the Charter of Shame is not enacted, which hopefully it never will be. But it might be, alas, and anyway, civil disobedience is a serious matter, which should not be threatened, I think, without having thought through its moral implications.