Morality Before The Law

In the mid 1800s two French political philosophers engaged in a long running debate.  One, Pierre Proudhon, is famous for his assertion that “property is theft.”  The other, Frederic Bastiat, is less well-known but has given us one of the most incisive quotations about the conflict between morals and the law.

“When law and morality contradict each other, the citizen has the cruel alternative of either losing his moral sense or losing his respect for the law.”

he is quoted as saying.

Both of these quotations are relevant today, more than 150 years later.  In a world where just 62 individuals own as much wealth as half of the world’s population we have a situation ripe for contradiction between morals and the law.  Were he alive today, Proudhon would be aghast at the inequality of the world.  He would be amongst the forefront of those claiming that those 62 individuals are stealing from the world’s poorest people.

Why do we have laws at all?  Three of the primary purposes of law are to: maintain social order, resolve disputes, and distribute social resources.  What happens when the law protects wealth accumulation and punishes the poor for attempting to obtain some of those social resources?

An Individual Case

An Italian court was faced with exactly this situation recently.  In 2011 Roman Ostriakov, a homeless man, was caught leaving a Genoa supermarket with cheese and sausages worth €4.07.  In 2015 he was convicted of theft, fined €100 and sentenced to six months in prison.  However, on 2 May 2016, Italy’s Supreme Court of Cassation, overturned his conviction, with the Judges stating that the "right to survival prevails over property,” mimicking Proudhon’s phrase.

Every day in Italy 615 people are added to the list of homeless, according to an Italian commentator.  Across the OECD homelessness is relatively high, with anywhere between one and eight people in every 1,000 experiencing homelessness each year.  Poverty levels are even higher.

Fortunately, for one of those homeless, the Italian court system recognised Bastiat’s dilemma, and opted for morality over the law.

A Community Case

In Western Pennsylvania, Grant Township is home to just 700 people, with 1/5th of them living below the poverty line.  The median household income is just $27,500 – the median household income for the US as a whole is almost double that at $52,000.

Notwithstanding that there are just 700 of them, with very little income or assets amongst them, these residents are upholding their moral right to stand up to the might of Pennsylvania General Electric (PGE) – an oil and gas exploration company that wants to undertake fracking operations in the area.

In 2014 the elected officials of Grant Township passed a Community Bill of Rights Ordinance that included “the rights of human and natural communities to water and a healthy environment.”

Within two months of this Ordinance being passed, PGE filed a lawsuit objecting to it, and threatening the residents with litigation if they tried to stop fracking operations going ahead.  The US Environmental Protection Agency sided with PGE and issued them a license to inject fracking waste into the watershed that Grant Township relies on.

Residents feared arrest and prosecution if they took civil action to oppose or block PGE.  Acting for the entire community Grant Township Supervisors passed a law that legalises direct action by its citizens to protect their access to social resources.  The law states that if courts do not uphold the right of communities to stop large corporates threatening them then “any natural person may then enforce the rights and prohibitions of the charter through direct action.”

Furthermore, this law “prohibits any private or public actor from bringing criminal charges or filing any civil or other criminal action against those participating in nonviolent direct action.”

The law is believed to be the first in the US that specifically upholds the rights of communities to use direct action to oppose corporate greed and power.  It effectively says that the communities moral rights supersede those of court imposed laws, and that citizens would not have to choose between Bastiat’s cruel alternatives.

These two examples, enacted within 24 hours of each other, indicate that occasionally morality can prevail in the face of unjust laws.