Is breaking the law ever justifiable?

Sally McManus, the newly elected secretary of the Australian Council of Trade Unions (ACTU), caused quite a fuss on Wednesday when she said during a TV interview that she didn't see any problem with breaking the law if the law was unjust. 

The outrage from both Labor and Liberal politicians that followed was predictable. Opposition leader Bill Shorten said he believed in changing bad laws, not breaking them. Employment Minister Michaelia Cash said the comments showed McManus was "a law unto herself". 

"All reasonable Australians fundamentally understand that a key pillar of our peaceful, democratic society is adherence to the rule of law," Ms Cash said. 

Their responses assume we have a duty to obey the law, even when it is unjust. But do we?

A promise to follow the law

Perhaps McManus' critics think we have such a duty because we have promised to obey the law and we have a duty to keep our promises. But who among us has made such a promise? New citizens and officials, but not most of us. Then again, maybe we promise in a less obvious way. Maybe our participation in the democratic process amounts to a promise to obey the laws that result. An obvious difficulty with this view is that, in Australia, voting is compulsory and forced promises are surely not binding.

Those criticising McManus could also claim that the disobedience McManus views as unproblematic would lead to further disobedience that would eventually undermine the Australian state. Yet the idea that isolated acts of disobedience would have these consequences seems improbable.

Alternatively, they could argue we have a duty to support just or nearly just institutions and the Australian state is as just as we could reasonably expect. We have democracy, the rule of law and certain liberties. These are not small things, but can our state really be said to treat all of us, whoever we are, with the equal concern and respect that justice seems to require?

If we doubt that it does, we would find unconvincing certain other arguments that McManus' critics might offer. We would, for instance, have difficulty accepting the argument that obedience is required as a matter of fairness to our fellow citizens, on whose obedience our receipt of state-benefits depends. Our sense of injustice would lead us to suspect the fairness of the distribution of the benefits – too many for some and too few for others.

A citizen's duty

Another argument that we would be reluctant to accept is that a duty to obey the law is built into citizenship. According to this argument, the fact we are Australians, whether we chose to be or not, means we have a duty to obey the law – disobedience would be un-Australian. We might doubt, though, that mere membership of a political community entails a duty to obey its laws. Whether the community is just surely matters too though. If it did not, we would have to conclude that the citizens of Nazi Germany had a duty to obey their law.

These are just a few of the arguments McManus's critics might offer in support of their assumption that we have a duty to obey the law. Suppose we are unconvinced by neither these arguments nor any others they could offer. What follows? As McManus says, we should do what the law requires only "when the law is fair and the law is right". We might, of course, think that the laws that regulate industrial action are right and so should not be broken. But that has not been the claim of McManus' critics.

Suppose, though, we are convinced by at least one of the arguments for a duty to obey the law. Would disobedience then be wrong? Not necessarily. Even if there is a duty to obey the law, it might be trumped in specific cases by considerations of justice. Even if there is such a duty, then, unlawful strikes, whistle-blowing and other acts of disobedience might be justified. Indeed, an Attorney-General's refusal to hand over his diary might even be justified.

Dr Kevin Walton is a Senior Lecturer in the Sydney Law School with an expertise in legal philosophy. This article was originally published by the Sydney Morning Herald.