Wednesday, June 3, 2009

Conscience is the best moral compass

The Law is supposed to be our guide and rule in all that we do. Two fundamental maxims are "Be you ever so high, the Law is above you." and "Ignorance of the Law is no defence."
In practice, though, it is not a lot of use for determining most of our behaviour. Which all too easily leads to a reckless disregard of it, even when it does provide a clear and pertinent guide to what should, or more often should not be done.

It does not help to keep the Rule of Law in good repute, when the first maxim above is widely seen to be interpreted by the authorities as "Be you high enough, the Law will ignore you." Even so, statute common and customary laws are full of conflicts and contradictions. These are sometimes resolved at a high level by judgements on points of law. It is interesting to note, however, that until the definitive judgements, learned lawyers and, sometimes, even more learned judges insist that the true meaning of the law was otherwise. If they cannot get it right, until they see the judgement in front of them, what hope has the ordinary lay person?

Of course, and very relevant to a Jersey context, some people need to earn their livings by taking great care to go through all the motions of obeying the letter of the law, without regard to its purpose or spirit. Once one travels in a direction not indicated by one’s moral compass, the Law is all that remains to distinguish the shrewd from the crooked. But, in quotidien life it is not practical to seek expert legal opinion for one’s every deed. Thus, one must rely on conscience to be one’s guide.

Most of the time, and for most people, law and conscience coincide anyway. Even professional thieves usually know that they are doing wrong to steal, they just don’t let that stop them. On the other hand, there are many more occasions when even quite reasonable actions fall outside the letter of the law. It takes an evil mixture of shamelessness and arrogance to drive at 5mph over the speed limit through a busy town centre, with a mobile phone wedged against one’s ear. In contrast, to drive at 25mph over the limit on a straight and empty country road, giving it one’s full attention, is not going to matter to anybody except a bored policeman with a radar gun. It is still just as illegal, though, and likely to be more heavily punished. If one is not caught though, one is hardly going to be stricken with remorse.

Once in a while, a law comes to be passed that is far more of an outrage than whatever it is intended to curtail. This is a tough dilemma for those who would be both righteous and law-abiding. If the penalty is sufficiently deterrent, then one will feel compelled to comply with the law, and absolve one’s conscience by holding the law responsible for one’s behaviour. If the penalty is bearable, however, taking a chance on being caught doing the right thing is not so much a temptation as a moral obligation.

A curious concept that has been bandied about, locally and recently, is that the disrespect for the Law implicit in its breach is a further aggravation in itself. This idea has been applied to giving unauthorised assistance to pensioners with difficult paperwork, a triviality attracting five-figure fines. The weakness of this idea can be illustrated by simply imagining its general application: Parking on a yellow line - £50, Disrespecting the Traffic Law - £5,000; Shoplifting a chocolate bar - £75, Disrespecting the Theft Law - £10,000; Robbery with violence - 3 years, Disrespecting the Theft Law - Life without parole in solitary confinement. No, this one is just silly. The penalty for a breach of the law should sufficient to deter the breach, but it also must be proportionate to the offence itself, and to inflate it because the offence is an offence is an absurd injustice.

All anyone can realistically do is to live their lives as well as they can, and just hope not to trip over the Law anywhere. However much one may wish to be law-abiding, the complexity and nebulosity of the law makes it a vain pursuit in the long run.
David Rotherham


  1. Deputy Southern,

    You work so hard out of, and in The States Chamber. Today you must have had a bit of a reward seeing the look on Senator(?)Fergusons face when you said that you were resigning.
    Well done, it had to be done.
    Keep up the good work, you will win through.

  2. A great exposition of the spirit of the law versus the letter of the law, David. Unfortunately, our local system seems to be conflicted (I hesitate to use the word corrupted) by an inability to realise that just chanting "the law is the law" does not make their position and beliefs and actions right.

  3. weel done deputys southern AND P[ITAM FOR STANDING UP TO D BULLIES IN THE SATES

  4. tank u jda for working so ard in the states keep going


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