Morality vs Legality: Is It Ever Morally Permissible to Break the Law?
It seems pertinent to introduce this essay with the ultimate immoral act: the intentional killing of an innocent. This act can otherwise be termed “murder” - intentional, offensive and unjust, and the archetypal “crime” depicted to justify the existence of law. The law exists, in this sense, to prevent and deter acts of moral repugnance, to act as a hard prohibition against immoral action, and a vector by which violations of morality and justice can be punished.
However, the question still remains as to whether breaking the law itself constitutes an immoral act. This essay seeks to answer this question by analysing whether the law holds any innate moral weight separated from the repugnant actions it prohibits; it will find that the law holds no moral character in itself. To suggest otherwise leads to absurd outcomes in logic and unjust policy. Therefore, even when it is not morally permissible to commit the action the law prohibits, it is always morally permissible to break the law.
This essay discusses “law” in the sense of written legislation passed by human governments delineating what actions citizens can take without institutional intervention (e.g., a law against theft would mean a piece of written legislation propagated by a governing body with the purpose of placing penalties on individuals proven to have taken objects without their owner’s consent). This definition delineates itself from “divine law”, which originates from a transcendent source such as a deity, and is separate from “moral law”, which refers to principles of conduct derived from an objective sense of “right and wrong”.
A strict definition of “moral permissibility” is more difficult to pin down, and is wrought with linguistic and philosophical objections. To give a firm foundation for analysis, this essay will define an action as “morally permissible” if it does not violate any reasonable, commonly held moral rules, duties or principles. This means that for an act to be permissible, it must not be based upon or a cause of any phenomena that violate any well-recognised moral principles (e.g. the harm principle).
When interrogating the moral character of law, the first question that must be asked is whether making an action illegal makes it, in any way, more impermissible. If this can be proven, it would follow that law has some moral relevance in itself. To answer this, consider a situation:
Abel and Ben live in Country X, where murder is illegal.
Cara and Dan live in Country Y, where murder is legal.
It is widely agreed in both Country X and Country Y that murder is morally impermissible (it is also agreed by all four people, who believe in this fact equally).
Abel murders Ben in cold blood, in Country X.
Cara murders Dan in cold blood, in Country Y.
The question is, can Abel’s action be seen as significantly morally different from Cara’s? It does not appear so: in both cases, an innocent was killed in cold blood by one who knew their actions were wrong, which constitutes a significant moral wrong and is therefore impermissible. Does the fact that Country X has made murder illegal provoke any additional repulsion, or does Country Y’s laws make the murder of Dan slightly more morally permissible? It would be absurd to say so. To prove this, consider a further concern: you know both the murders are going to happen, and can prevent one. Whose murder do you choose to prevent?
Suggesting that the two murders hold different moral values would make this obvious: if the legality of an action is a morally relevant factor, you should save Ben and let Dan be murdered, as Ben’s murder would be more morally impermissible. Intuitively, however, this feels wrong. What unique moral value does having a law against murder confer on Ben’s life, compared to Dan's, to justify such a decision?
The choice between Ben and Dan is therefore an equal one, ceteris paribus. The law against murder confers no special moral character onto murder in Country X, just as having no such law does not change the moral impermissibility of murder in Country Y. In both cases, Abel and Cara’s actions are abominable, repugnant, and impermissible, regardless of what the law says.
One can change “murder” and the subjects involved to any such crime (whether it be Abel stealing from Ben, Cara defrauding Dan, or even two individuals taking drugs), but in any case, Abel and Cara’s actions are equal in moral impermissibility, regardless of what jurisdiction they occur in. The law clearly and logically cannot and does not confer moral character onto actions, regardless of what these actions actually are.
Therefore, if this is the case and breaking the law does not make an act morally worse, it is always permissible to break the law, as this action does not hold any moral character. This does not mean that the action which breaks the law is always permissible (murder, theft, etc. are overwhelmingly immoral, except in a few circumstances), or that these actions should be done or should go unpunished. Indeed, most illegal acts are made illegal to reflect their harmful and immoral status, and should be punished as violations of moral rules. However, what needs to be recognised is that breaking the law alone as an action in itself is not immoral, and is therefore always morally permissible.
One should not murder, or steal, or hurt regardless of whether the law permits it or not. To apply some exterior moral relevance to the fact that a law exists is folly, and invites serious policy problems for those who violate unjust laws that actively hurt them. A LGBTQ+ person loving someone the law forbids them to love commits an impermissible act. A segregated community commits an impermissible act when it violates the law to fight for equality. The law simply cannot have such a character: logically, politically, and morally, it is always permissible to break the law.
By James Barber
