“An unjust law is no law at all”(St Augustine)

Hits: 561

The above  quote sprang to mind whilst viewing CNN : Zakharia Fareed’s GPS on the  29th January 2017.

A panel of participants were discussing the legal action taken by the ACLU against the temporary anti-immigration decree signed into force by President Trump earlier in the week. A legal representative for the ACLU outlined  the  complex and convincing argument which resulted in a high court judge temporarily mitigating the decrees’ more devastating consequences for some of the groups of people affected.  The point was made that the decree violated  firstly, the constitution, secondly , the right to due process under the law, thirdly, some  legislation relating to discrimination against religious groups, and fourthly, treaties  such as the Geneva convention which have been signed by America and give all refugees the right of asylum in the country. The implication being made was that the decree was an anti-Muslim measure.

Another legal expert countered the ACLU position  with the view that, given the history of judgments from the US court system,  it was highly unlikely  that the action would succeed simply because there had been a history of discriminatory legal judgments against  minority groups including the Chinese which still stand as precedents in the legal system today.  It was also claimed that  President Obama had during his presidency taken up this very  issue of the courts “second guessing” the government on national security issues. The legal expert countering the ACLU expert  claimed that he did not approve of the decree but was basically arguing that the law was the law and with respect to the issue of anti-Muslim discrimination  this would not be the court’s position in view of the fact that some Muslim countries were excluded from the decree.

The next panel participant was a lady  who had been a Middle Eastern correspondent and claimed, that under the temporary anti-immigration decree she would be prevented from entering the USA, as would Fareed if he left and decided to return. Her  argument basically was  that “an unjust law is not a law at all”. She went on to make another  point about White supremacy and made the connection to the Trump government via  the new head of national security Steve Bannon who, it was claimed,  previously edited a right wing  media outlet. She was very articulate and being an ex-debate coach I likened her performance to a speech in a debating competition. I absolutely agree with her that the  problem with the  argument she was attacking was that it was completely ignoring the humanistic element of the  whole issue.(CNN had immediately prior to GPS been showing the crowds of demonstrators at a large number of airports up and down the US). But in defence of the legal expert perhaps his assignment from CNN was merely to respond to the ACLU court action.  In good debating tradition the legal expert that she had attacked was allowed to respond  but in doing so he  completely ignored her major argument that this was a constitutional  and humanistic issue transcending the actual practice and precedent of law. She was admonished for categorising 47% of the voters as white supremacists and also for letting her passions get the better of her reason.

I would like to argue that, from a humanistic liberal point of view ,the Middle East expert had a perfectly legitimate argument which was ignored and which goes all the way back to St Augustine who argued that the actual law must meet criteria of divine or eternal law if it is to be a just law at all. If we move forward into the realm of philosophy from the realm of religion  and apply St Augustine’s quote in this new context , Kant(an enlightenment philosopher)would definitely say that any law which was not in accordance with the moral law, e.g. did not respect people’s  freedom as an end in itself, was not a bona fide law at all.  For Kant, then,  the moral law was intimately connected to freedom and freedom could only be restricted if it encroached upon the freedom of others. He is often accused of being very formal and logical in his characterisation of the moral law but he concretises his first abstract formation of the moral law with the demand that we “act in accordance with the humanity in ourselves and others by never treating anyone solely as a means but always also as an end in themselves”. Philosophers during the Enlightenment and since have also been very quick to point out that no legal law can change the moral law but the moral law has very often in history served as the corrector of unjust laws. Move beyond the enlightenment to the civil rights demonstrations in the US led by Martin Luther King and you will find a concrete example of what I am saying.  Martin Luther King referred to the moral law in his arguments and used St Augustine’s quote.

Earlier during the evening on a CNN report, a senior democrat had used the image of the statue of liberty weeping in connection with the temporary anti-immigration decree. I know the lady statue of justice is blindfolded but when the Middle East expert  was neutralised because of her “passion” it was like hearing the statue of justice   wailing and then witnessing her being gagged, at least in respect of this one very important argument. This for me illustrated the success of the Trump media campaign in “scaring” reporters away from the philosophically important humanistic issues that are involved here. This phenomenon also occurred throughout the election campaign and is continuing. Reference was made to the fact that Fox news was the preferred channel for the Trump team and I am truly sorry if this criticism of CNN drives even one viewer in that direction because, in my opinion CNN is the channel that is succumbing the least of all American channels to all attempts to neutralise the media.

I do not know what the outcome of the court action will be  considering the fact that supreme court justices are  politically appointed, but if the decree stands then we will indeed be faced with the reality of living with an unjust law in this ,the 21st century in the USA. The law and morality will be split apart and only mass demonstrations of the magnitude of the civil rights marches last century will restore the marriage. However, even if that is the case in the meantime there is still the very real issue of the confusion created  at airports because of the lack of communication concerning which groups of people were and which groups of people were not to be screened or allowed entry.

Just a footnote concerning the relation of the President to reality. At the same time as the mass demonstrations were being televised at airports in the US, the President claimed that things were going “very nicely”.  The key philosophical issue here is how to correctly describe and explain the phenomenon we are presented with. I saw no comment on the media about the Presidents statement. This inversion of the good and the bad, the truth and the false  by Trump and his team is a tactic that has wrong-footed the mass media for more than 6 months now and it is time for them to attend to their footwork and live up to the expectations that all have of the 4th estate.