The ‘Law’ can be above the law

September 5, 2015

“Morality is higher than the Law” Statement by Mikhail Khodorkovsky

My short post on the moral right of Russian citizens not to obey immoral laws has caused a controversy online.

Whether the [legislative] law always corresponds to the morality of the ‘Law’[a body of rules governing human behaviour, based on what is right], has been discussed by humanity for a long time, and the matter has already been laid to rest – the law and the ‘Law’ is not necessarily one and the same thing. The law can be immoral. In the history of humanity there are many examples of this. Unfortunately, during the third term of Vladimir Putin, Russia has decided to add plenty more examples to the list.

Laws passed by an illegitimate government are immoral.

Laws, which violate basic human rights and freedoms are immoral.

Laws which are unclear, allowing for their implementation ‘depending on the case at hand’, are immoral.

Laws, which are impossible to fulfil, contradicting other, un-annulled laws, are immoral…

Recent Russian laws receive a depressing diagnosis – they fail on all the above points.

Inconsistent law enforcement is yet another form of violation of the legal code. However, you come across it literally everywhere: during elections, when the signatures submitted by some candidates are carefully examined, whereas others are looked at through parted fingers; in court, when Oleg Navalny received three and a half years, whilst Evgenya Vasilyeva was freed, despite the fact that the damages judged by the court were far greater in the second case. Again, I want to emphasise that I am much more concerned by the fact that one of the men is in prison than that the second went free.

The legal system plays a key role in the life of society. It shapes the behaviour of citizens, communicating what is acceptable in society and what is not. In today’s Russia, the ‘legal system’ means only one thing – you must unquestioningly submit to the representatives of power, and under no circumstances look them in the eye.

Nevertheless, the government and society are in the same boat. The citizen is the source of both the government and the business elite’s prosperity. When the most proactive and enterprising citizens leave the country, the government starts to become nervous; similarly, their acute understanding of events radically differs from the version, which the rest of society is fed.

The leaders of the government see that today’s economic situation is the result of their management of the country. Criticism is heard increasingly often, is becoming more warranted, and therefore is provoking more dissatisfaction.

It is clear that society will be forced to discuss increasingly thorny issues:

  • – How legitimate is a parliament elected in extremely controversial elections, which provoked significant outrage amongst society?
  • – As a result, how legitimate are laws taken by such a parliament, which are, moreover, clearly anti-constitutional?

In the absence of an independent court, which would assuage such doubts, these questions fall to the moral choice of each of us: should we obey these laws, which run counter to our conscience, or take a risk, knowing the consequences of disobedience?

Refusing to obey immoral laws and immoral court decisions is an act of civil defiance, and a reasonable, effective means of exerting pressure on, and even changing, authoritarian and repressive regimes. Moreover, it is less bloody than armed resistance, although quite a long process, and often not without victims.

Precisely because of this, today many government propaganda machines have been set to work. Their aim is to keep society from the realisation that such workable, effective tools are available.

They have two basic lines of attack: ‘the violation of the legal code is worse than an authoritarian regime’ and ‘the one who is speaking out doesn’t have the moral right to do so’.

It is hard to say which violation of the legal code is being referred to, given that from both a philosophical and theoretical standpoint, our legal and human rights have already long been violated. It is clear that rigged elections, biased courts and anti-constitutional laws are far graver violations of the legal code than the refusal to submit to illegitimate decisions.

Another, no less important question, is how to avoid obeying laws, which are unethical and unfair, but are safeguarded by all the power of the bureaucratic machine?

First of all, you already disobey many idiotic and contradictory laws in force in the Russian Federation, even if you are unaware of the fact. Therefore you are already at risk. This is one of the characteristics of our ‘legal system’, the amendment of which is perhaps the most crucial task facing our country today.

Secondly, if you do this not simply through a lack of awareness and indifference, but deliberately, honestly and morally, in order to sabotage unjust rules, then maybe you will prevent the authoritarian regime from tightening a noose around someone’s neck.

Finally, a word on whether I have the right to encourage you to disobey the law.

Unlike me, each of you is unlikely to be threatened with a ten-year sentence or a prison sentence in general.

It is perfectly clear to me why the government is attempting to deprive me of the moral right to such statements, arguing that ‘He is abroad, living in safety, and shouldn’t encourage such things’. They say this first of all because it is not possible to physically deprive me of this opportunity, like they can many others in the country.

Nevertheless, I have continued my campaign of civil disobedience. I was forced to spend ten years in prison for absurd accusations, but I still did not admit to being guilty, although doing so may have freed me much earlier.

If I had compromised, all the employees of my company might have been declared participants of one big criminal organisation. And the shareholders of Yukos, having trusted us with their capital, would not have been granted the opportunity to defend their rights in international courts.

I lost years, but I am not ashamed of myself. I am thankful to all those who waited for me, supported me, and still support me. I fulfilled all the obligations put upon me. Self-respect is far more valuable than money or one’s comfort. At the end of the day, it is the only thing, which you are left with.

As such, I believe that I have the moral right to defend my point of view – if only because I myself have done that which I now call upon other citizens of my country to do: to remember that the ‘Law’ is higher than the law.

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