During the first days of the easing of the lockdown, when we were allowed to exercise on the streets again and to queue in two meter staccatos to order a takeaway coffee at our favourite spots, I was struck by the different attitude that people have in following the rules.
On a trip from my working-class neighbourhood towards the more affluent northern ‘burbs, the gradual disappearance of masks, and the growing in the number of groups of people drinking their skinny lattés together was notable.
In the streets and on Twitter there seems to be stark disagreement between whether regulations must be followed; there is division on the reasons why they may be deviated from; and once the regulations are contravened, there seems to be disagreement as to what rules may be deviated from.
Somewhat frustrated, I seek self-regulatory answers to the age-old question: must we follow the rules even if we don’t agree with them?*
The rule of law
My comfort zone is the law, which is what catapulted the thought process to the concept of the rule of law. The rule of law is one of our founding values, contained in the Constitution. At its basic level, it deals with the legal system and governance.
Some of the formal principles on which it is based are that the laws must be generally applicable, that they must be clear, be made public, stable, and operate prospectively. There are also procedural principles that deal with the administration of these norms, and the institutions that administer the rules.
The rule of law stands alongside other values in our society, namely democracy, human rights, and social justice (and some will add economic freedom). It creates the framework for the social contract to operate.
In that sense the rule of law binds both the government and citizens. Government is expected to exercise their powers within this specific framework. This should prevent them from making arbitrary rules, at a whim, and by using personal preferences or ideology to make decisions.
From a citizen’s perspective, the rule of law requires that citizens comply with, and follow the laws, even if they do not agree with it. Conflicts between citizens asserting their rights will be dealt with settled rules and deliberated on in an elected body, and these rules give content to the law. But it also makes clear how the dispute will be settled. It also means that the law will be the same for all, that no-one is above the law, and that everyone is subjected to, and protected by, the law.
If looked at purely from a rule of law perspective, one is obligated to follow the rules, even the ones you don’t agree with. The most extreme example of this is perhaps Socrates drinking the poison after being found guilty for corrupting the youth of Athens, even if he did not agree.
Civil disobedience as a form of lawbreaking
But of course, the law does not operate in a vacuum. There might be a time when personal morality requires a person to break out of the civil obligation and break the law. During Apartheid, the burning of the passbooks was one such example. Rosa Parks taking a seat in the bus is another.
Civil disobedience usually refers to social actions that speak to a higher, abstract morality, such as freedom, equality, or justice. Civil disobedience is done by ordinary people, not saints, or heroes or people purporting to be saviours.
The only way of getting rid of the morally repulsive laws must be by breaking the law.
Of course, disobeying laws, even if for a morally good cause, is still a contravention of the law, and, if the rule of law is intact, the law will attach the usual consequences to it. Think of the conscientious objectors being jailed during apartheid.
So, is there an ethical duty on us to obey laws, even if we don’t agree with them?
On the one crude end, the answer is, yes, always. Proponents of this view will likely argue that all laws are justifiable, or that it is a bigger sin to break a law than it is to have an unjust law. Perhaps even more so in a democratic society, where there are legal and political avenues to address the issue. But this might not be the case in despotic regimes, or in democracies where the rights are empty or institutions weak.
On the other end, the argument is that observance of the law is not always good for democracy, and that disobeying laws may actually be good for democracy. It might be the only way for the minority to get their voices heard.
Regardless of the stance, people cannot be officially encouraged to break laws, without legal consequences. Especially not in a constitutional democracy where the rule of law is an important value. Civil disobedience speaks to moral goals and just causes.
Why do people break laws?
Of course, wanting laws to be effective and our Constitutional democracy to remain intact, lead me to ask why some people are more prone to follow the rules than others.
Psychology offers a myriad of answers, and here I only highlight some of the studies in have come across in my quest for answers.
One study shows that people with a greater sense of entitlement are less likely to follow the rules, especially if they view the instructions as being an unfair burden on them. Breaking the rules is then a better option than submitting to unfair obligations imposed.
Another study indicated that people are more likely to accept absolute rules than rules that are not definite. Rules that can be beaten will be challenged more, while people will submit to rules that leave no opt-out room. A threat to the absoluteness of the rules, can undermine the authority of the rules, and will lead to greater non-compliance.
Yet other studies have shown that if you involve people in rule-making, they are more likely to follow it because they feel part of the process, with a sense of social belonging and an alignment with their values. (I practice this legal socialisation in my household with success. Mostly.)
A study also linked self-control with violation of social rules and found that people with low self-control are more prone to break social rules, that also translated into transgressing legal rules. Conforming to rules requires altering inner impulses at times. If your ability to practice self-control is diminished for whatever reason, you are also more likely to break rules.
So, should we?
Covid-19 brought along a whole new set of issues to study, to reflect on, and to make suggestions for going forward. “Why we follow rules?” is one such question with a multitude of answers.
Legally it is clear that there is room for improvement as far as strengthening the rule of law is concerned – both from a government and a citizen perspective.
Confused citizens getting lost in the matrix of regulations, produced at high speed, with ongoing ex post facto public participation to fine-tuning and adjusting, provides research material that can keep us busy until the next pandemic.
A preliminary-during-the-pandemic prognosis of why, legally, people don’t follow rules points to unclear rules, based on absent or unclear reasoning. If the government wants us to follow the rules, we should at least have clarity on what they are, and understand why they are necessary. This might explain to the entitled ones why the rules are, in fact, not unfair.
From an ethical point of view, the continuum of plain law-breaking and civil disobedience will be dissected and discussed and people will differ. We will try and answers like: Is the leader of the official opposition getting a haircut on YouTube busy with civil disobedience, or with plain-law-breaking political performance? And: Should people who have access to courts and to political decision-making resort to rule-breaking to ensure that their opinion prevail? Or: Should we tolerate the breaking of Covid-19 regulations after three months of discomfort, and be intolerant towards people who set up a housing structure on vacant land without the permission of the owner after waiting for housing for 25 years?
Within the framework of constitutional democracy, the answer is not simple. We all make choices for various reasons, but when we make these choices, we need to take responsibility for the consequences. Whether social or legal. And we must self-reflect on what impact these actions have on the system of laws, that seeks to order our society, guide our behaviours and during Covid-19, is arguably there to mitigate the impact of the pandemic.
For now, I am happy with the answer: we are free to have our opinions, but we are less free to just act on them. At least not without accepting that they come with, what may be fatal, consequences.
*Before the snitches snitch on me: I, too, have contravened the rules, once I have reached balance between personal risks, personal needs and the perceived risk to greater society. 5 weeks into lockdown I allowed a close relative to visit us upon request; I hugged a dear friend when she dropped off merchandise in level 4; and in level 3 I have had one-on-one social distance coffees (masks and all) with a dear friend.
** This was first published on http://www.Stellenboschnews.com on 18 June 2010