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Law without ethics? February 10, 2010

Posted by Sverre in : Human rights , trackback

The Norwegian weekly newspaper Morgenbladet brings a thought-provoking piece this week by professor Hans Petter Graver, dean of the Faculty of Law at the University of Oslo. In a recent book by novelist Kjartan Fløgstad, the way the law profession went into the service of Nazi Germany is put in a very bad light.

Professor Graver, far from leaping to the defense of his profession actually defends the depiction by Fløgstad, even giving it current relevance by drawing parallels between the reinterpretation of German law to accomodate Nazism and the reinterpretation of American law under Bush to legitimize coercive interrogation techniques such as “waterboarding” or even hitting a detainee in the face or stomach.

He points to a dangerous tendency within his own profession not to take a moral stand, insist there are two sides to every issue and be servile to government. This may be done under the guise of a neutrality necessary for preserving the rule of law even under bad regimes, but it requires ignoring the original intent of the law, ripping the very foundation out from under the system in the process. There are good examples of the law profession participating in the defense against external enemies, but in defending the rule of law against perversion by internal enemies, the historical record is not very good.

His conclusions are rather radical, considering that they come from the dean of the oldest and most prestigious law faculty in Norway (my translation):

History gives us little reason to be optimistic. The state can be built by law in good weather, but law and order are insufficient – occasionally even dangerous – during a storm. But what should then protect us when it really counts, when we cannot trust lawyers and the rule of law? What we must then trust in is the anti-authoritarian impulse in the people, the very antithesis to the part in us that wants to bend to authorities and superior force, even the one with legality behind it.

It is in other words not law and justice that will save the rule of law when it is seriously threatened, but the will to rebel against law, and the will to insist on justice even against the system of justice. The ability to recognize when law and judgement is wrong and when the power of the court is oppressive and an assault on justice is the core of the wisdom that is needed.

Is this also a caution relevant to political science? Are political scientists as servile defendants of the system even when the system has been perverted to attack the very values it was designed to defend?


1. steven andresen - April 22, 2010

I agree with the claim, here made by professor Graver, that in a storm we cannot rely on law and judgement, but rather, we have only justice and the willingness to confront unjust laws and judgements. And this, in the face of the state’s having laws and judgements on its side.

I would say the SCOTUS’s unwillingness to rule on the constitutionality of the Viet Nam war, for example, arguing that it was a political question instead of a question of constitutional law, is a prime example in support of the professor’s point.

These days, it is the “rule of law” which seems to be the issue which law and judgement fails to protect us. I’m talking here how law and the judgement of the legal profession is tempted to throw rights and protections the people have had since the Magna Carta under the bus.

At this point, it is only our willingness to fight for justice against the law that protects us.