Blog

In Crime and Punishment (Dostoyevsky 1866), the protagonist justifies his crime by the fact that « all men are divided into ‘ordinary’ and ‘extraordinary.’ Ordinary men have to live in submission, have no right to transgress the law (…). But extraordinary men have a right to commit any crime and to transgress the law. »

According to the US Constitution his theory seems inconsistent. The phrase “We the People” states that all humans are equal before the law. No one is therefore more legitimate than another to break the law. Moreover, Raskolnikov was neither rational nor reasonable when he decided to murder his pawnbroker. His judgement was influenced by material poverty, emotional misery, and pure narcissism. The use of reason is fundamental for anyone to judging whether a law is just. I cannot break a law that seems unjust, but only to me. Dura lex sed lex.

If “unjust” means “non-compliant with the law”, referring to an “unjust law” would be absurd. However, considering that law is a human feature, historical or geographical developments may render a law inconsistent. In Latin, “to justify” means “to make just”, i.e. to make a legitimate action legal. The “defense of justification” from Article 35 of the  New York Penal Law provides that I can break the law in a state of necessity. If “unjust” means “non-compliant with moral values”, then “just” means “fair”.

A fair law is made through reason and ensures the protection of universal moral values, i.e. freedom and dignity. Hence I should break a law that does not follow this guiding compass. Claudette Colvin is an American Civil Rights pioneer. She fought against the “Separate but Equal” legal doctrine by refusing to give up her bus seat to a white woman.

These acts of civil disobedience are much controversial because they are not within the bounds of the law. Moral justification is an imperative that legitimizes the violation of a specific law. It prevents actualization of anti-democratic and illiberal goals. 

Judging whether the law is unjust is one issue. I should break an unjust law under the “defense of justification” or under the “demands-for-conviction”. But breaking an unjust law is another thing – it is difficult and hazardous. Before doing so, I should acknowledge the social cost and legal consequences of my actions.

In fact, fighting an unjust law requires much courage. French Resistance fighters under the German occupation were called “terrorists”. Representing 1% of the population, they undermined social peace through uncivil and forceful tactics. JFK’s words illustrate it : “Victory has a thousand fathers, but defeat is an orphan” (1961). We only know in retrospect whether breaking or following the law was right. Hence, affirming “I will oppose all unjust laws” or “I will follow the law” may seem presumptuous.

Although Raskolnikov broke the law, he was convicted.

Although Eichmann followed the law, he was convicted.