(The following editorial first appeared in the January 1987 issue of Analog Science Fiction and Fact. Thirty-five others, on a wide range of topics, are collected in the 2002 Tor book Which Way to the Future? A different one (usually one not available in the book) will be posted here a few times a year. And, of course, brand-new ones appear in each issue of Analog.)
As expected, my July 1986 editorial, "Unholy War," drew lots of heated mail. That editorial dealt with the recent small but noisy movement among anti-abortionists using such aggressive tactics as bombing abortion clinics, and the tendency of some sympathetic law enforcement officials to tolerate or even encourage such behavior. It was not primarily about the morality of abortion itself, though some readers predictably reacted as if it were. It was about the morality and legality of these methods of protest, which I maintained were at least "rude" and in some cases illegal, and about the ethics of public officials deliberately ignoring the laws they were hired to enforce. In discussing those issues, it was necessary to touch on the peculiar nature of the evidence with which both "pro-life" and "pro-choice" advocates justify their positions; but my main goal was not to defend or attack either position as such. Some readers recognized that and saw past the "trigger words" to what my real point was. I was delighted that some of them brought into the open some disturbing questions that were implicit in the whole discussion, and it is to those that I return today.
Before I get into that, let's make one thing very clear. This editorial is not about abortion. Please read that sentence three times, slowly, and keep it in mind for the duration. If at any point you think it is about abortion, you're missing the point. Please try again.
OK. Now that that's out of the way, we can get down to business. The interesting and important question several readers raised refers to the fact that I objected to some of the protesters' tactics, and to officials' tolerance of those tactics, on grounds of illegality. In particular I pointed out that, like it or not, abortion is now legal, and policemen and judges are employed to enforce the law as it is, not as they would like it to be.
To which some readers quite rightly replied that "legal" and "moral" do not always coincide, and that some of the things now generally regarded as history's great social advances were achieved only by violation of existing laws, while some of history's greatest atrocities were fully and undeniably legal. I agree completely, and in fact consider the point so important that I will not only pass on some of my correspondents’ examples, but add a couple of my own.
I started writing this on July 4 (in the middle of a lavish "Liberty Weekend" that ironically fell at a time when the pendulum of history seemed well into a swing toward more restraints on personal liberty). Despite my parenthetical comment, the American experiment seems to me one of the most worthwhile and, on the whole, successful in recorded history. What happened on July 4, 1776 has led to a truly monumental series of achievements. The way has not always been smooth and the record is far from perfect, but the real accomplishments are of such magnitude and importance as to overshadow quite a few shortcomings. Perhaps the anniversary of its signing is an appropriate time to reflect that the Declaration of Independence and the armed rebellion that followed violated the letter and spirit of existing law about as flagrantly as anything could. If the Revolutionists had lost, George Washington and Thomas Jefferson and all the others would be remembered not as heroes but as criminals and traitors. In the strictly legal sense, they were--and I'm glad they did what they did.
In the next century, this country was divided by a controversy over black human beings who were held as slaves. Their status was legally tested and clarified: slaveholders were fully protected by law, and abolitionists who smuggled slaves north to freedom via the "Underground Railroad" were unequivocally criminals. So were those who helped Jews hide from Nazis in Hitler's Germany--while the mass murderers who ran the ovens at Dachau and Ocwiecim (Auschwitz) were law-abiding citizens.
Those few examples should be enough to shake anyone's faith in a simple correlation between "law-abiding" and "virtuous." Once his faith is so shaken, how is a person to decide when laws should be obeyed and enforced, and when they should not?
That question, it seems to me, represents a truly fundamental dilemma which lies at the very heart of the concept of civilization. Every civilization and every human being must find his or its own answer, and I grow increasingly doubtful that it ever has a nice simple answer that everybody can be comfortable with.
One simple answer that might be proposed is that every man or woman must follow his own conscience, whatever the law may be. Sounds good--but the inevitable consequences of that kind of thinking are what made laws necessary in the first place. Consciences are highly individual things: what one man sees as purifying civilization in a holy cause, another sees as cold-blooded murder--and they both sincerely believe they're right. One of the few legitimate functions of government, as I see it, is to protect individuals from others whose ideas of right and wrong allow injury to their fellows. Most modern governments exercise that function at least in part by establishing laws which spell out what kinds of behavior will and will not be tolerated, and enforcing those laws by punishing violations. Consistent enforcement is an essential part of the process, because without it laws are just meaningless words. Some readers said that if human judgment is not allowed to intervene and make exceptions, the result is a "cold and mechanical justice," or words to that effect. No doubt there is some truth in that, which is one reason courts have judges and juries. But history provides plenty of hair-raising examples of the other extreme, where individuals ruled by whim without constraint by law. They are why “a government of laws, not of men" has come to be widely regarded as a civilized ideal.
On the other hand, laws are made by men, and men can make bad laws. A society in which bad laws are blindly obeyed can be just as nightmarishly destructive and inhumane as one in which a ruthless tyrant can carry out bloodthirsty whims with impunity. Herr Hitler demonstrated that very dramatically, and other examples abound.
Those are extreme cases; most of us live in cultures where some laws are more beneficial than harmful and others are just the reverse. So what is a person to do--obey (and, if he is an official, enforce) the ones he likes, and ignore or try to get around the ones he doesn't?
Actually, some version of that is eminently defensible, if it's really thought out. If you haven't read the discussion of "rational anarchism" in Chapter 6 of Robert A: Heinlein's The Moon Is a Harsh Mistress, I strongly recommend that you do so--and think about it.
What they taught us in school, as I recall, was that a Good Citizen obeys the law as it is and works within the system to change the parts he thinks need improving. Like so many other things, that sounds good on paper and sometimes even works--but sometimes, in practice, it leads only to frustration. The American Revolution, the Underground Railroad, the increasingly turbulent demonstrations against the Viet Nam War, the anti-abortion protests at the fringes of legality--all of these things have happened because people who wanted to change things found that working within the system wasn't working. Having tried to get what they wanted through more accepted political channels, and failed to make what they considered significant progress in a reasonable time, they turned to other methods. Which, on at least one level, is a perfectly sound engineering approach: if Method A (as in the instruction book) doesn't work, try Method B.
But it's not so good for people who do like the way things are and have a reasonable expectation that the law will help keep them that way.
Fundamental dilemma: On the one hand, laws exist to protect people from each other, and people have a right to expect the kind of protection promised by the law. On the other hand, one man's protection is another's oppression, and it seems a perversion of good character for a man of strong principle to follow or even tolerate a law which seems clearly immoral.
Schools, in my experience, have seldom faced this dilemma squarely. "Be a good citizen," they told us, “and obey the law." And then they told us, "Follow your conscience: always do what you know is right."
They never told us you can't have it both ways--but you can't, unless you have that peculiar kind of "conscience" than can honestly believe your leaders are always right, no matter what. Anyone with a real conscience--anyone who's actually thought about what he considers moral or ethical--is sooner or later going to find his thinking in conflict with prevailing law.
When that happens, he's going to have to decide what to do.
I offer no easy answer. I don't think there are any. The fundamental dilemma is so fundamental to the whole idea of civilized conduct that it will always be with us.
The best I can say is that, in the long run, that may not be so bad. In fact, the fundamental dilemma and the ways people deal with it might be viewed as integral parts of the real government under which we live (the "official” government being another part).
The official government has built into it a system of checks and balances. The U.S. federal government, for example, has three branches--legislative, executive, and judicial--each of which can modify and curb actions of the others. If the President doesn't like a law passed by Congress, he can veto it. Congress may revise it to get his approval, but if enough members feel strongly enough, they can override his veto. The courts can invalidate a law passed by Congress and the President by finding it unconstitutional. If that bothers Congress enough, it can change the Constitution. And so on.
The “fundamental dilemma,” it seems to me, is an informal extension of the system of checks and balances through which concerned citizens exert direct influence on the direction of law and society. The people hire a government to exert certain controls on their own members--but they will not accept just any controls. Left to its own devices, the official government will churn out and enforce a steadily evolving body of law. Sometimes, even with checks and balances within the official government, some portion of that body of law will get seriously out of tune with the perceived needs of at least some of the people living under it. If the mistuning gets bad enough, some of the aggrieved will rebel against the offending laws--and, depending on a variety of factors including how much of the population sympathizes with the protesters, they may eventually force some change.
Viewed that way, this "extracurricular check" is probably a useful thing, and historically it has been an integral part of the evolution of law and custom. But for checks and balances to be effective, the factions involved must always try to carry out their own roles to the best of their ability. The dynamism which makes the system work results from an interaction which is at least partly adversarial, and it's seriously weakened if judges try to act like legislators or legislators try to outguess judges. Each branch exists not to keep the others happy, but to keep them in line.
So is it with the official government and the people, the collaborator/ adversaries in this last check-and-balance relationship. The government is hired to define and enforce limits on individuals: it cannot carry out its function unless it actually and consistently enforces the laws it has made. The people cannot expect good government unless they insist on it, actively opposing laws that they find intolerable until those laws are changed--by campaigning and voting, if possible; by means that risk jail, if necessary.
That it why there will never be a utopia. People differ, and people change. When what I've called an expanded system of checks and balances is operating optimally, law enforcement agencies enforce laws, some of which are less than ideal; and citizens break laws, when they have found those laws unacceptable and have exhausted other means to change them.
And that, I suspect, is the best we can hope for as an answer to the fundamental dilemma. Not entirely satisfying, perhaps--but the alternatives, whether obeying or ignoring laws indiscriminately, are worse. Civilization can afford neither governments which allow some people to do whatever they choose, nor citizens who blindly follow whatever is put forth as law.