Look down, look up

You don't have to be an anarchist to at least sometimes experience difficulties in enforcing the laws. The laws are numerous, confusing, and written by people from all corners of the political spectrum. People who set rules do or do not deserve respect; new authorities from time to time completely abandon political succession. Most of our fellow citizens feel confused when thinking about this. Economist Vadim Novikov talks about several rules that will help separate laws that are worthy and unworthy of execution.

When it comes to respect for the law, both statists and liberals are ready to use the West as an example. One is attracted by the presence of order, the other by its universality, the subordination of everyone to this order, from the common man to the president and princess .

Probably, Russians would like to respect the law, but this is speculative, but their true feelings towards the law are known, and these are contradictory feelings. The results of an all-Russian survey, which was published by VTsIOM in February of this year, show: approximately three-quarters of respondents (74%) are confused - “everything is changing so quickly now that you won’t understand what laws to follow,” and more than half (60%) cannot accept the law as an unconditional guide to action - sometimes instead of the law “one should act according to one’s conscience.”

The predominance of supporters of selective enforcement of laws is noteworthy in that the source of this position is the own moral intuition of members of society. No matter how strongly the state, or more precisely, its leadership group, influences people’s opinions on other issues, it is obvious that here the authors of these same laws did not receive the ratio of answers they desired. Just as the last Soviet leaders did not receive them either - a survey conducted a year before the collapse of the USSR gave very similar results. The basis for such opinions is clear: the state cannot always be right if everyone knows that its official guidelines have changed - and more than once - to the opposite. In the words of Vera Zasulich’s defender, lawyer Pyotr Alexandrov, “what was considered a state crime yesterday, today or tomorrow becomes a highly respected feat of civil valor.”

The opinion of the majority rarely needs to be defended, especially when the position of the minority, which advocates compliance with the law always and everywhere without a single exception, is so radical and far from the golden mean that it can hardly be taken seriously even by its supporter. If the law required him to sacrifice his son, it is unlikely that he would repeat “the law is the law” and raise a knife over him. What is allowed to God is not allowed to deputies.

That is why, in this case, the position of selective non-compliance with laws does not need to be defended, but rather to clarify the moral foundations of this non-compliance and, therefore, to determine its permissible limits. After all, the silent demands of everyone’s conscience cannot organize life in society in the same way as a body of written laws, or completely replace them. Neither can public morality as a whole - it is known how often gentlemanly agreements become the subject of insurmountable disputes, as long as they have not been recorded on paper in compliance with sound formalities.

Refusal to unconditionally comply with laws is in no way equivalent to their denial. Of course, behind this refusal there can sometimes be anarchism, non-recognition of states in general and non-recognition of the authority of a particular state, but the position of selective law enforcement is based on a more universal idea - people live in conditions of many competing responsibilities, and compliance with a specific law can only be one of them .

Let's imagine a lawyer who agreed to give lectures on Wednesdays at 10.00 and who had a trial scheduled for the same time, where he had long committed to defend a client, who could be sentenced to death. The lawyer should be at the lecture. But this does not mean that he should also go to it - after all, he has a competing duty, he also has to be in court, and, one could argue, this is a more important duty. “Should” does not always mean “should”!

Once we accept that there is more than one duty in the world and that these duties may conflict, there is no longer any question of an absolute duty to obey any particular law.

The relativity of the requirements of obedience sooner or later manifests itself even in the army, where obedience is usually placed above many other virtues. A soldier cannot limit himself to stating “an order is an order,” because if the criminality of the order becomes clear to him, the obligation to obey the order will be replaced by a criminal ban on its execution (Article 42 of the Criminal Code). It turns out that the simple-minded “an order is an order” is not even suitable for the army. What can we say about civilian life?

Even if we take into account only the obligation to comply with the laws, we see conflicts of obligations that lawyers have to resolve on the basis of certain rules: say, the Constitution has priority over the law, a new law over the old, a special law over the general one, etc. It turns out that if there is a law before you, and according to this law you must act in a certain way, this does not mean that you should do exactly that way. Knowing just one law, you still don’t know for sure what to do.

However, duties do not end with the duty to obey laws, but lawyers do not offer rules for resolving conflicts of laws and other moral duties. What can you do in such cases? In my opinion, there should be something similar to the rule “look left, look right” when crossing the street - in this case it is “look down, look up”.

"Look down" implies an assessment of the content of the law, looking at it as a text whose authorship and legal force are unknown, or perhaps even as a law, but ancient or foreign. If the text of the law prohibits something that is clearly morally reprehensible without it, say, murder, rape or theft, the weight of such a prohibition as a first approximation (we'll talk about the final assessment later) should be considered equal to the weight of the corresponding moral requirement. In general, the more harm a prohibited act causes to other people, the more reprehensible it is in itself, regardless of the law.

When looking down, another situation is possible - the law requires something that is morally reprehensible or prohibits doing something that morality prescribes. In this situation, there is no need to talk about the moral force of the law; it is absent. When implementing such a law, one can only talk about justifying circumstances, which, first of all, may be the excess of sanctions for its violation over the seriousness of the obligation that had to be neglected.

Here is the famous plot of Sophocles: contrary to the ban established by the ruler of Thebes Creon and reinforced by the threat of execution, Antigone buries her brother Polyneices. In her opinion, which, of course, the Greeks sympathized with, state law cannot violate “the law of the gods, not written, but strong.” However, serious sanctions for violating state law still serve as justification for Antigone’s sister, Ismene, who obeyed the law, and they also make Antigone’s act beyond her obligations, and therefore heroic and admirable.

In a completely different situation, a Muslim asks a spiritual authority about the permissibility of working at customs. Given that import duties, as well as indirect taxes in general, are prohibited by Islam, he receives the answer that the only acceptable purpose of such work can be “to stop oppression and reduce it,” but not to earn money - benefit to oneself is not an excuse for causing harm others (answer from Muhammad Salih al-Munajid to question No. 39461). In other words, the religious authority gives him direct instructions to sabotage the law.

The next step beyond “look down” is “look up.” This involves looking at the header of the document, which indicates the authority that issued it and the state to which it belongs.

Our competence does not always allow us to assess the fairness of a particular law directly. This is one of the reasons why, in addition to the “look down”, the “look up” is also required. It allows us to rely on the reputation of the body that adopted this law, just as when buying sausage or a book we rely on the reputation of a meat processing plant or a writer: if the last purchase was good, we expect that it will be the same this time. If the government has passed fair laws until now, we can expect that the new one will do so too, perhaps even if we ourselves have drawn a different conclusion from its text. “Even if” means that when the source is authoritative, doubts can and sometimes should be interpreted in his favor rather than in your own. This is what happens in countries where laws are respected - the state has a credit of trust. Adjustment for the authority of power is another reason for the “look up”: this look can not only be a forced replacement for the “look down”, but also complement it - this will give the final assessment.

The “authority correction” can also be negative. If a "look down" shows the justice of the law, say, the prohibition of theft and the punishments that support it, a "look up" may show that someone accused of stealing a mobile phone (just "the accused") can be killed in a police station (a famous case in the police department " Dalniy"), and taking this into account, the punishment for petty theft becomes exorbitant.

To illustrate the proposed approach, let us turn to the example given by the German legal philosopher Gustav Radbruch. In 1942, at the height of World War II, German businessman Karl Götting from Nordhausen (Thuringia) wrote in the toilet: “Hitler is the organizer of mass murder and the culprit of the war.” The court official Joseph Putfarken, who somehow found out about this, wrote a denunciation against Götting, as a result of which Götting was captured, convicted and executed.

Four years later, in 1946, another trial took place with the participation of Putfarken. The subject of consideration was that same denunciation. The prosecution, represented by prosecutor Kuchinsky, argued that “whoever in those years denounced another had to take into account the fact - and he was aware of this - that he was handing over the accused to the hands of illegal justice with legal guarantees for establishing the truth and rendering judgment a fair sentence, but into the hands of arbitrariness.”

The court sided with the prosecution, recognizing Putfarken's act as unlawful. The accused was aware that his denunciation would lead to the death of Götting, which indicates the intent and, thus, the guilt of Putfarken. After considering the evidence presented, the jury found the defendant guilty of accessory to murder and sentenced him to life imprisonment. The judges of the Kassel Regional Supreme Court who passed the unlawful verdict were considered to be the direct killers.

In the story of Götting and Putfarken, the "look down" refers to the law allowing execution for graffiti on toilets. Given the injustice of such a law, Putfarken, who decided to use the law, needed justification, and since in the absence of denunciation he did not risk anything, he did not have a serious justification. His action was not “self-defense.”

"Looking Up" shows that the judicial system that was supposed to hear the Gotting case was not trustworthy. With the same success it was possible to hand over even a suspect of an undoubted crime into the hands of bandits or cannibals. Regardless of the pretext for the transfer, this would not be a trial, but a murder, albeit through cannibals. And it was on the basis of the usual criminal prohibition against murder that Putfarken was convicted - this prohibition equally applies to all methods of committing a crime, be it a knife, a pistol, or the court and the law. If there is one general rule, it is this: following the law is no excuse. The confusion of Russians when looking at our shaky and contradictory laws shows that the majority know this rule, even if they are not clearly aware of it.

Read the entire issue of “Man and the Law” here .