African asylum seekers and Israeli activists demonstrate outside the Rwandan Embassy in Herzliya, February 7, 2018.
Jack Guez / AFP

Moral Minority Is It OK to Break the Law to Hide Asylum Seekers Facing Deportation From Israel?

To answer that question, it’s a good idea to consider the Nuremberg trials and the philosophy of Henry David Thoreau

Dear Haaretz,

I consider myself a law-abiding person, but the plan to expel the asylum seekers raises inside me, for the first time in my life, guilt feelings and a harsh clash of values. As the granddaughter of Holocaust survivors, I can’t stay on the sidelines and watch manhunts in Israeli cities.

The moral imperative dictates that I join the ranks when called on and actively try to save lives. I’m tempted to join the dozens, hundreds or even thousands of Israelis who have volunteered to hide asylum seekers in their homes at a time of great emergency.

In fact, I don’t think I could live in peace if I didn’t do this. However, such an act would undermine the basic assumption that I’ve believed in – that obeying the law is a basic condition of living in a society, as a means of preserving justice.

Looking forward to your answer,
Workers of the World

Dear Workers of the World,

Since we all agree that expelling refugees and asylum seekers is improper, let me entertain the question of law and ethics. I’ve repeatedly written in this column that law and ethics don’t necessarily overlap, and that there are cases when it’s not only permitted to oppose the law, it’s necessary. To answer your question, I won’t suffice with a short and intuitive answer; I’ll indulge in a discussion on the philosophy of law.

Let’s start with the Nuremberg trials – not because the situation with the asylum seekers is comparable to the Holocaust; for sure it’s not. Rather, the Nuremberg trials were a moment in history when the question you asked came up for debate. Indeed, the people put on trial had basically operated according to the Third Reich’s laws. Thus the prosecutors’ approach was that there are cases in which the crime is against a universal principal of “justice” and “ethics.”

Natural law is the same idea the formulators of the UN Universal Declaration of Human Rights used when they referred to “inalienable rights of all members of the human family.” The basis of international law is precisely the understanding that state law and the idea of justice or ethics aren’t necessarily the same thing, and that there are crimes against humanity and human ethics. This is the place to mention that international law is a foundation on which rests the demand on countries to take in refugees.

Some of the accused in the dock at the Nuremberg trials.
Some of the accused in the dock at the Nuremberg trials. U.S. Government / Wikimedia Commons

As Israeli international-law experts have noted in a manifesto sent to Attorney General Avichai Mendelblit, the Interior Ministry’s rules for deporting asylum seekers to Rwanda violate international law in part because they violate “the international legal principle of refoulement which states that a country is forbidden to remove a person who might be exposed to persecution, torture or inhuman and humiliating treatment.” This principle draws its validity from conventions that Israel has signed.

By the way, even international law should be taken with a grain of salt when it comes to ethics. This isn’t only because it is subject to so many long-winded legal debates and political forces that there’s no correlation between such laws and justice. The idea of supreme natural law stems from the psychological need to believe that the universe is just and orderly.

But not only is the universe not like this, humans certainly are not like this. Legal scholar Omar Swartz has shown how even at Nuremberg the winners didn’t worry about justice but rather about justifying their political priorities. Thus many Nazi war criminals were released because they were useful, and war criminals among the Allies weren’t tried (not to mention the execution of Nazi criminals in the name of that “natural law,” which is also a hard idea to swallow).

Rejecting metaphysical and positivist rationales and the rhetoric of natural and positive law, Swartz’s legal suggestion was to adopt “a pragmatic critique of social injustice.” Such a critique rests on the assumption that “a socialist concern for the well-being and equality of all people is preferable to our current system in which personal interests (e.g., greed and selfishness) become the basis for the social, political and legal orders.”

In other words, Swartz basically sends us back to moral intuition, which he refers to as “moral imagination.” This doesn’t fuss with the question of whether refugees in Rwanda are in mortal danger or just hungry. Rather, it opens its arms to a person who fled a country in ruins.

If your goal is preserving justice, as you wrote, the state’s laws don’t always protect justice, even in its narrowest definition. (Seriously, in the Israel of today it seems laws get enacted even if they blatantly oppose any idea of justice and equality.)

Thus perhaps the question you should ask is what the motivation is to violate the law. If you don’t want to pay taxes because it makes you mad that poor people benefit from your money, that might not be a particularly moral basis for breaking the law. If the motivation is protecting people that the law is prepared to expose to hunger and death (as testimonies by refugees deported from Israel to Rwanda have revealed), then refusing to obey the law not only doesn’t challenge justice, it strengthens its very foundations.

In “On the Duty of Civil Disobedience,” which Henry David Thoreau wrote against the backdrop of his opposition to slavery (another immoral institution that was protected by the law), he crafts a basic rule on this matter: “If the injustice is part of the necessary friction of the machine of government, let it go, let it go ... but if it is of such a nature that it requires you to be the agent of injustice to another, then I say, break the law.”

Henry David Thoreau in June 1856.
Henry David Thoreau in June 1856. Benjamin D. Maxham / villy / Wikimedia Commons


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