For pity is the virtue of the law

Image: Lady Justice – William Cho/Creative Commons

For pity is the virtue of the law,

And none but tyrants use it cruelly.

Shakespeare, Timon of Athens,

Alcibiades, 3.5.10

Once upon a time a political leader said: “No one is above the law in this country…There is a process to be followed.”

I choose here to forego the naming of that leader. My interest lies in the discussion of significances.

“Which law are you talking about?” you may ask. Is obedience to every law a moral duty?

Well this post has some tests for you.

1.The German Enabling Law 1933

On the 23 March 1933, Hitler introduced the Enabling Law to the Reichstag. This law gave Hitler the right to rule by decree rather than by laws passed through the Reichstag and the president. It was a legitimate enactment of its time, duly passed by the German parliament.

The Law: Gesetz zur Behebung der Not von Volk und Reich: To Remedy the Distress of the People and the Reich

Der Reichstag hat das folgende Gesetz beschlossen, das mit Zustimmung des Reichsrats hiermit verkündet wird, nachdem festgestellt ist, daß die Erfordernisse verfassungsändernder Gesetzgebung erfüllt sind:

The Reichstag has enacted the following law, which is hereby proclaimed with the assent of the Reichsrat, it having been established that the requirements for a constitutional amendment have been fulfilled:

Source: https://en.wikipedia.org/wiki/Enabling_Act_of_1933 6/11/19

Many people disobeyed this law. Tortured people. Dead people.

Here are some famous words from Pastor Martin Niemöller, appropriate for us at this point in time:

First they came for the socialists, and I did not speak out—because I was not a socialist.

Then they came for the trade unionists, and I did not speak out— because I was not a trade unionist.

Then they came for the Jews, and I did not speak out—because I was not a Jew.

Then they came for me—and there was no one left to speak for me.

So where would we stand with this law if it were passed today?

Or what about this example?

2. The Carlsbad Decrees

An attack on university and school free-thinking, the Carlsbad Decrees were a set of laws passed by the German Confederation in 1819. The Decrees were motivated by fear of insurrection. The French Revolution of 1789 and the Napoleonic Wars were stark memories in August,1819. So Klemens, Prince von Metternich and his political colleagues aggressively decided to punish dissent and so guard against a repetition of 1789.

Germany as a unified, single nation did not exist at this time. It was instead a military style confederation including Austria, Prussia, Bavaria, Saxony, Mecklenburg, Hanover, Württemberg, Nassau, Baden, Saxe-Weimar-Eisenach, and electoral Hesse. Metternich, Austria’s foreign minister, was the dominating force of the group.

It is important now to look at the provisions of the Decrees, you know, laws no one is to be above. Metternich et al. proposed these decrees: (1) that the Diet of the German Confederation (Bund) implement censorship of all periodical publications; (2) that the Burschenschaften or nationalist student clubs, be broken up and schools and universities placed under constant surveillance for dissent; and (3) that a powerful inquisitorial commission be set up at Mainz, to detect and remove conspirators. The decrees were agreed upon by the representatives of the German states on September 20, 1819.

They crushed dissent for many, many years. In 1848 revolution was partly successful in reducing the effect of the the Decrees. At least Metternich resigned and went into exile.

Now comes the vital question. Is obedience to such laws today a moral duty? That is a thought for all of us.

Now here is a third example.

3.The Butler Act: the law against the teaching of evolution in Tennessee schools

It is forbidden…to teach any theory that denies the story of the Divine Creation of man as taught in the Bible, and to teach instead that man has descended from a lower order of animals…

An Act…prohibiting the teaching of the Evolution Theory in all the Universities, Normals and all other public schools in Tennessee, which are supported in whole or in part by the public school funds of the State, and to provide penalties for the violations thereof.

Source: https://en.wikipedia.org/wiki/Butler_Act 7/11/19

One high school science teacher in Tennessee famously defied the Butler Law. John Scopes was indicted in May 1925 for teaching Darwinian science. He was convicted and fined insignificantly at a trial that gave us Inherit the Wind, a notable 1960 Stanley Kramer film and a 1955 play by Jerome Lawrence and Robert E. Lee.

Source Film: https://en.wikipedia.org/wiki/Inherit_the_Wind_(1960_film) 7/11/19

Source Play: https://en.wikipedia.org/wiki/Inherit_the_Wind_(play) 7/11/19

Source Scopes Monkey Trial: https://www.bbvaopenmind.com/en/science/bioscience/butler-act-the-law-that-outlawed-evolution/ 6/11/19

So what would you have done if you were in John Scopes’ shoes?

Let us move on. Here is another law for us to think about.

4. Australian Conscription Law 1964

The National Service Act 1964, passed on 24 November, required 20 year old males, if selected, to serve in the Army for a period of twenty four months of continuous service (reduced to eighteen months in 1971), followed by three years in the Reserve. The Defence Act was amended in May 1965 to provide that CMF (Citizen Military Forces) and conscripts could serve overseas. Over 63,000 men were conscripted and over 19,000 served in Vietnam. 15,381 conscripted national servicemen served from 1965 to 1972, sustaining 202 killed and 1,279 wounded.

Source 1: https://www.nma.gov.au/defining-moments/resources/vietnam-moratoriums 7/11/19

Source 2: https://en.wikipedia.org/wiki/Military_history_of_Australia_during_the_Vietnam_War 8/11/19

A young teacher named William White was a great influence on me not only in my position as a teacher but for me as an active demonstrator against the ignominy of Australia’s participation in the invasion of Vietnam.

His Words:

First, I am standing against killing – the taking of human life… Morality, to me, is based on the respect for life. I respect people, I respect their feelings, I respect their property and I respect their equality, on the basic conscientious assumption that they have, as I have, the unquestionable right to live.

Secondly, I am standing against the war itself as a national and international policy. As war, by definition, has always incorporated killing, I would have been opposed to any war on this basis.

On the third front I am opposed to a state’s right to conscript a person, I believe very strongly in democracy and democratic ideals—and I believe that it is in the area of the State’s right over the life of the individual that the difference lies between totalitarian and democratic government. My opposition to conscription, of course, is intensified greatly when the conscription is for military purposes. In fact the National Service Act is the embodiment of what I consider to be morally wrong and, no matter what the consequences, I will never fulfil the terms of the act.

Source: https://en.wikipedia.org/wiki/William_White_(conscientious_objector) 7/11/19

There are some more words on the Vietnam war worthy of note. Inspiring words.

They belong to a time when political speakers dared to proclaim ideals instead of simply meeting requirements of focus groups. This is some of a speech by the Leader of the Opposition in November 1966, Arthur Calwell:

My fellow Australians. There are many issues in this election which you must consider carefully and well before election day.

I shall state the policy of the Labor Party in regard to most of them tonight, and I will deal with the remainder during the course of the very short campaign of less than three weeks which the Government has allowed.

The most important issue in this campaign is Conscription, the conscription of a section of our twenty year old youths, against their wishes and their wills, to kill or be killed in the undeclared, civil war in Vietnam and the threatened extension of conscription to all twenty year olds and other age groups to increase our unwarranted and unnecessary commitment.

We can prevent all this happening by defeating the menace on next Saturday fortnight.

The Menzies Government made the first blunder over Vietnam nearly two years ago. It blundered equally badly over Suez in 1958. The Holt Government is determined to increase the extent of the Vietnam blunder.

So unimpressed are our men of military age, about the need to fight in the war in Vietnam, that none of them will volunteer. No one can deny this fact; not even our own bellicose Prime Minister.

The Government, having failed to attract volunteers, has resorted to conscription to maintain our army. It asks for your endorsement. I hope you will refuse it most emphatically.

Conscription is immoral, it is unjust and it is a violation of human rights. It must and will be defeated.

Source: https://electionspeeches.moadoph.gov.au/speeches/1966-arthur-calwell 6/11/19

So time now has passed. Knowing what we know today, in a time slip back to 1967, where would you stand with this law?

All right, I confess. Here is a picture of me today wearing my 1970s “moratorium” badge.

Now time for scrutiny of another law.

5. South Africa’s Apartheid Law 1948

This system was called apartheid. Suddenly, a white person and a black person could not marry. Black and white people could not share a table in a restaurant, or even sit together on a bus, and black children and white children were forced to go to different schools.

Source: https://www.ool.co.uk/blog/imprisonment-nelson-mandela/ 7/11/19

What do you think? Would you be above or below this law?

Perhaps Nelson Mandela’s words give the best guidance we can find:

I have walked that long road to freedom. I have tried not to falter; I have made missteps along the way. But I have discovered the secret that after climbing a great hill, one only finds that there are many more hills to climb. I have taken a moment here to rest, to steal a view of the glorious vista that surrounds me, to look back on the distance I have come. But I can only rest for a moment, for with freedom come responsibilities, and I dare not linger, for my long walk is not ended.

Nelson Mandela

Source: https://www.goodreads.com/author/quotes/367338.Nelson_Mandela 7/11/19

After eighteen years of confinement on Robben Island, working at hard labour and being allowed but one visitor every six months, Mandela was finally freed and became South Africa’s first black president.

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Yet another law draws our attention.

6.The Unlawful Oaths Act 1797

This obscure Act has a weird place in British trade union history. Its use challenges us law abiding citizens.

Really! It is linked despicably to the Tolpuddle Martyrs.

Who were these historic figures?

They were six farm labourers from the village of Tolpuddle who were convicted in 1834 of swearing unlawful oaths and transported to Australia for six years. That conviction is now recognised as a virtual miscarriage of justice.

The injustice is linked to the British fear of trade unions. Fear has long been a useful propaganda tool of those who fashion harsh laws.

In 1799 and 1800, the Combination Acts (anti trade union laws) had forbidden “combining” or organising to gain better working conditions, and were laws created partly because of political fear generated by the French Revolution. In 1824, the Combination Acts were repealed due to their unpopularity and replaced with the Combinations of Workmen Act of 1825. This law legalised trade unions but severely controlled their activities.

In 1833, six poorly paid labourers from Tolpuddle, a village seven miles north east of Dorchester on the River Trent, formed the Friendly Society of Agricultural Labourers to agitate for relief from pathetic low wages. Current wages were seven shillings a week and reduction to six shillings was imminent. Their aim was ten shillings.

William Lamb, Second Viscount Melbourne, Home Secretary at the time, was particularly hostile towards trade unions, and seems to have seen the six villagers from Tolpuddle as convenient scapegoats to inhibit future combinations. So George Loveless, a Methodist preacher and the leader, his brother James, James Hammett, James Brine, Thomas Standfield and Thomas’s son John, were relentlessly pursued by officers of the law.

The Workmen Act of 1825 made prosecution difficult. So the prosecutors turned to an archaic naval law designed to prevent mutiny: the Unlawful Oaths Act of 1797. This did the job as the six men had sworn an oath to protect the Friendly Society, so the humble labourers were successfully sentenced to transportation for six years in the Australian colony.

Transportation to Australia was a very harsh punishment. The voyage was dangerous and convict life was a cruel imposition. There was strong popular agitation in England in support of the Martyrs. A thousand fold petition was lodged with parliament.

After three years of this popular support, the men were allowed to return home with pardons and with heroic status – 1837-1839.

Source 1: https://en.wikipedia.org/wiki/Tolpuddle_Martyrs 8/11/19

Source 2: https://www.tolpuddlemartyrs.org.uk/welcome 8/11/19

So what do you think? The Unlawful Oaths Act of 1797 – a law to be obeyed in all circumstances? Had anyone the right to be above this law?

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Perhaps now this is a good place to share some philosophical points of view.

Here is the first.

If we acknowledge that the rule of law IS important, let us say the alternative to chaos, what then are the desired characteristics of any law passed?

For strong advice I recommend a visit to Australia’s Magna Carta Institute .

Here from me are some of the characteristics of the good law, based on my visit to the Magna Carta Institute.

The legislature, executive and judiciary must be separate.
Open and transparent laws must be made by elected representatives of the majority of the population.
Criticism of the law and administration will be free and open through assembly without fear.
No one is above the law if it is applied openly and free of fear.
The law is to be known and available to all so all can comply.
There will be no torture and fair government litigant rules must apply.
The legal system will be independent, impartial, open and transparent and deliver a just and prompt trial.
All accused are presumed innocent until guilt is proven, and may remain silent without incrimination.
No one can be prosecuted, civilly or criminally, for any crime not part of the law at the time of committal.
No one is subject adversely to a retrospective change of the law.

Now we come to a second philosophical point. It relates to a saying that is a standard part of legal studies:

Lex iniusta non est lex (An unjust law is no law at all)

Saint Augustine’s famous maxim calls out to us in the light of the laws we have discussed in this post. I leave it to you to decide.

So here I stand, thinking about the realities of the rule of law.

Maybe times will arise in the future when we feel duty bound to defy convention.

Let us hope that the consequences of our actions, whatever they may be, will lead to happier lives and peace of mind.