I have just read the judgment against the UCT students who were involved in burning some of the University’s art collection. Of course this act brought to mind the often quoted warning from the poet Heinrich Hiene that: ‘Where they burn books, they will also burn people.’ If this is true, then it is true because the people burning the books refuse to engage with deconstructing, evaluating, deliberating, resolving and revision. There is one viewpoint, mine, the revolution’s, the decolonializer, Marx, God’s, Allah’s, Hitler’s, Stalin’s. All others must not be given the space to be proved or disproved. Eggs must be broken to make the utopian (or decolonialized) omelet! And yet is this true of the UCT students? Perhaps. But looking down the list of respondents, some of whose names I recognize, I sincerely hope not.
What interested me was, however, their defence, or at least one aspect of it. This seems to have been premised on the idea that they were acting ‘in compliance with the doctrine of necessity’ and that their actions were the necessary acts of ‘civil disobedience’. This gave Judge Allie reason to reach for the Concise English Dictionary and to duly state that civil disobedience is defined as: ‘The refusal to obey the law out of the belief that the law is morally wrong.’ And so case closed! Essentially they admitted to the crime. You can believe a law to be unjust and immoral until you blue in the face but if you break one, in your process of objecting to its inequities, the law still retains its power to sanction. As H.L.A Hart said, this is the ‘aura of majesty’ that the law retains. Of course this is precisely why he said that the law must always be submitted to ‘moral scrutiny’.
To give the full quote:
So long as human beings can gain sufficient cooperation from some to enable them to dominate others, they will use the forms of law as one of their instruments. Wicked men will enact wicked rules which others will enforce. What surely is most needed in order to make men clear sighted in confronting the official abuse of power, is that they should preserve the sense that the certification of something as legally valid is not conclusive of the question of obedience and that however great the aura of majesty or authority which the official system may have, its demands must in the end be submitted to moral scrutiny.
HLA Hart in his The Concept of Law (where the quote comes from) is insistent that legal and moral obligation must be seen as distinct ideas. This is part of his famous ‘separablity thesis’, which argued that laws may be informed by morality but they are not moral in themselves. He argued that to see them as the same will lead to autocracy. We just need to look at the apartheid ‘Immorality Act’ to see just how this functions i.e. the National Party believed that their laws were moral.
But his thesis also has some serious implications with regards to one’s legal and moral obligations. Hart argued that understanding the obligations a citizen has to a legal rule and their obligations to their morality may mean that these two come into direct conflict with one another when a person feels a law is immoral. What is more, he argues that at times the only reason for complying with a law may simply be the force it brings to bear on the individual. So the UCT students may find the country’s laws devoid of a certain moral texture, there is certainly a strong argument for this. However, they and their lawyers are naïve in the extreme if they think they will find any succour from the law for trying to point out a law’s immorality by breaking other laws. Both their actions (in burning the artworks) and their legal defence seem to have lacked reflection, understanding and deliberation – this is for me the most disturbing aspect of the current acts of civil disobedience.
Photograph from Groundup website: Ashleigh Furlong