The permanent conflict between what is legal and what is moral is a key sign of our times and of our modern cultures; it is an important conflict and a great challenge to almost all of our current social considerations. As Action (and most human action is social) is central to our living, to our identity building, and to the shaping of our general human culture and civilisation (whatever the latter might be), then it is a matter of simple inference to consider the subject of legality vs. morality as central to our humanity. Our action is governed and/or judged by a certain compass, and this compass is often legal, moral, or a combination of the two. It is precisely in this confusion of the compass to use, and in the circumstantiality of the compass we use, that we continue to find great difficulty in our days in acting and judging social action. Should we base our actions on some legal code, legal practice, or legal tradition? Or should our action be ultimately accounted for by a higher morality? When should we consider that doing something morally right is more important that doing something legal, and why? And why is it, in any case, that we have this conflict between legality and morality? What is it so difficult in unifying them and ridding ourselves of the problem?
Before we continue further, we shall note that we will purposefully concentrate in this three-part series on the conflict between legal and moral within the context of one particular general culture (say for example, the European culture, American culture, or Chinese culture), and not address the even more important and more difficult subject of reconciling different legal codes and different moralities pertaining to different cultures. In other words, we will limit ourselves to the opposition between one legal system and one moral system only, which is admittedly quite a simplification of our global social reality as it presents itself today.
The subject of what is moral in opposition to what is legal has been quite alive in recent geopolitics, in both explicit and implicit manners. Let us take two recent examples: we witness heated debates today on the subject of surveillance programs and their scope, as well as on the subject of Western powers intervening in foreign conflict areas and what scope of intervention exactly.
The current US administration’s defence line on the surveillance program consists of saying that the programs currently in place are actually legal, or, slightly more controversially, are not forbidden by the US constitution in place. These surveillance programs, it holds, do not tap into the content of the communications of US citizens on US soil, even if it records them, unless under direct US court authorisation or warrant; hence, these programs respect the civil liberties of the US citizens as protected by the US constitution. As for the rest, i.e. as for what is not strictly forbidden by the US constitution, it remains silent on what is really happening. It is worth noting that this ‘rest’ is around 6.8 billion people around the world… We can then naturally ask, are the practices of these surveillance programs morally acceptable acts, by the same moral standards that the American culture holds high? The scope of the US constitution is predominantly US citizens and US soil; we do not expect of any constitution or legal code of any particular country to legislate everything concerning every foreign citizen, soil, and circumstance. Hence, if these surveillance practices are indeed legal under US legal code, are they really moral?
Let us now consider the case of intervention in foreign conflict areas, such as Syria or Central Africa, and the debate over whether militarily-capable powers, especially Western ones, should intervene in foreign lands to secure peace and protect the innocent, under which conditions, following whose decision and support, and according to which defined scope and objectives. Here, we must say, we are not any longer in the realm of any one particular culture anymore because of the international aspect of the problem; nevertheless, there exists today an international legal code for such geopolitical matters, and I like to think (or hope) that most human beings in this world can agree or do agree on some very basic human rights and moral values, such as the protection of innocent children from being massacred in a large-scale manner. Western powers intervening in conflict zones without the formal consent of the United Nations is illegal under current international law. Many have expressed this view, for example in the case of Syria, and they are right in saying so from a legal point of view. NATO consent and Arab League consent in the case of Syria are not commensurate with UN consent; hence, a military move in Syria without UN consent would remain illegal under current international law and how it is structured, regardless of what NATO and the Arab League might think. But should we not do anything in acute conflict zones because of that? Is it ethical to have children and innocent people killed continuously and on a mass-scale; know that this is not likely to stop in the near future; know that if anything it is actually worsening; and sit idly or shrug and say we can not do anything because the UN Security Council can not come to a decision on the subject? The current UN political structure is a relic of post World War II dynamics and needs modernisation – most reasonable people know that. Several attempts have already been made to discuss the subject of the governance of the UN with no luck so far; International Law and its enforcement systems remain highly deficient today. So what are we to do in cases of acute human conflicts, especially when weapons of mass killing are being used? Here, in contrast with the above, and despite opposing wars in general from having seen their consequences first-hand, I find myself closer in agreement with what the current US administration wanted to do in Syria or what France is doing today in some parts of Africa.
What is important to note is that legal definitions and structures do change with politics; moral values and ethical systems are also prone to politics but less so and in a different, slower manner.
[To be continued].