When conscience conflicts with the law

In Sophocles' Theban tragedies, Antigone is a daughter born to Jocasta through her incestuous relationship with King Oedipus of Thebes without being aware of their mother-son relationship.

Antigone, who is the heroine in the story, defies the law (the decree of the king) and attempts to give a respectable burial to her brother, Polyneices, even though he was a traitor to Thebes and the law forbids even mourning for him, on pain of death.

It portrays a classic conflict between the law and what was considered a moral thing to do (which was to give a decent burial for her brother).

In recent times we are witnessing more and more instances where people have to choose between the law and the dictates of morality.

Sometimes this is expressed as conflict between God's laws (i.e., what is morally right) and what the political authorities legislate (i.e., what is legally right). But is there really a distinction between law and morality?

It has been argued that a good person is one who will do what is lawful. And what is lawful should be what is morally right.

In some early societies, such as in ancient Greece, lawmakers determined what is right and wrong. Kings and lawmakers are thought to have the ability and knowledge to distinguish between right and wrong.

Plato, for example, suggests that wise persons with full development and use of human reason are able to lay down what is moral and just. According to Plato, there is a very close connection between morality and human well-being.

Laws and political institutions that depart too far from true justice should, if possible, be replaced by instruments that better promote justice to ensure the well-being of the people.

Moral code

Before proceeding further it would be helpful to take a closer look at the concept of morality. Morality (Latin moralitas for "manner, character, proper behaviour") can be simply described as a sense of behaviour or conduct that differentiates between good (or right) intentions, decisions, and actions and those that are bad (or wrong).

A moral code is a system of morality (usually according to a particular religion or culture); immorality on the other hand is the active opposition of what is deemed as moral.

Problems however arise when there are differences in the understanding of what is moral and what is immoral. If it is held that laws should conform to requirements of morality, should laws be based on the moral compass of one segment of the population, usually the one which has predominant political power or is most vocal about imposing its morality on everyone, for the common good?

The problem gets further compounded in a vibrantly plural society.

We can make a distinction between what is actually legal, according to the political authorities and what should be legal, or what we would call morally right. We sometimes find that what is legally right, flies in the face of conventional human wisdom or natural justice.

The relationship between morality and law therefore is not an easy one. Let's look at some examples:

There are matters that almost everybody would agree are unjust, e.g. laws providing for slavery, or discrimination of minorities or marginalised groups in society.

The existence of such laws would suggest strongly that morality and law are not identical and do not coincide.

The existence of laws that support basic values, which almost everyone accepts -such as laws against corruption, slander, theft, murder, rape, - shows that there can be a parallel between law and morality.

Law can be seen as a codification of the moral principles of conduct which a society as a whole accepts and values. At the same time, the sense of morality of the predominant group in a society can influence the law by providing the reasons for making certain actions and behaviours legal or illegal.

Inbuilt sense of right and wrong

It is often said that we should not "legislate morality"; morality should instead be left to the moral sense of individuals. The argument is that all people have an inbuilt sense of what is right and wrong. The writings of the Apostle Paul in the Bible have been cited to support this point of view.

The great early Christian apostle and apologist points out that even those who do not believe in God frequently obey God's laws: "for when Gentiles, who do not have the law, by nature do the things in the law, ...(they) show the work of the law written in their hearts, their conscience also bearing witness, and between themselves their thoughts accusing or else excusing them" (Romans 2:14-15 (NKJV).

On the other hand, those who are opposed to legislating morality would not be against laws that proscribe many forms of "immorality" such a rape, theft, exploitation, corruption, etc.

This apparent contradiction points to the need for us to be extremely circumspect about what should be held up as moral and decried as immoral for all.

Laws governing morality are generally acceptable by all when the legislation covers matters of morality on which there is almost universal agreement. Opposition arises when people impose their personal moral views upon others.

A rather peculiar feature of the discourse on morality is that it has a tendency to focus on very narrow aspects of human behaviour. For example, a starving woman who has no clothes to wear may be the target of moral indignation over her near state of nudity rather than on issues of hunger, poverty and perhaps ill-treatment.

Similarly, behaviours relating to sexual relationshsips and consumption of alcohol somehow seem to claim a disproportionate amount of attention and energy of religious groups in comparison with other issues such as corruption, abuse of human rights, exploitation of domestic workers, misuse of power, misappropriation of public funds, etc.

Laws cannot be entirely divorced from morality. Personal views of morality should not be imposed on others.

Concerned groups should pay attention to the broad range of "moral issues" especially on those where there is universal acceptance.

JOSIE M FERNANDEZ is currently an Asian Public Intellectual Fellow, director of Philanthropy Asia, consultant and researcher. Working on sustainability, philanthropy and anti-corruption actions are some of her current passions besides writing.