The Ethics of Sanctuary
FEBRUARY 18 2016
By Andrew Hamilton
Offering sanctuary to women and children seeking protection from despatch to Nauru would break the law. That is a fact. The important question is whether it would be right to break the law in this case. Of course people break the law all the time. They fail to move on when instructed by police, evade tax, drive too fast, keep silent about abuse in churches, speak out about abuse in detention centres, trespass on military facilities, and drive when drunk, All break the law and, if caught, face sanction. And generally we say that they acted wrongly. So understandably many people assert that it is never right to break the law duly enacted by the government. If so, anyone offering sanctuary to people who seek protection in Australia must be acting wrongly.
Most Catholics would beg to disagree with the principle. We honour Christian martyrs who disobeyed Roman law compelling them to worship the Emperor, Hans and Sophie Scholl who distributed anti-war leaflets in Nazi Germany, and the many people in occupied Holland who harboured Jewish families. These people appealed to a higher law that trumped laws enacted by their rulers. And we praise them.
After World War 2, Nazi officials were condemned for crimes against humanity, despite pleading that they were obeying the law and lawful instructions. The tribunal said disobedience to Nazi laws was not only legitimate but obligatory.
It follows that when we consider the case of offering sanctuary to people who seek protection in Australia we must ask first whether the law prohibiting this action is just. If we find the law to be unjust, then we may ask under what circumstances it would be justifiable to break it. I would argue that the policy that allows women and small children to be sent to Nauru is unjust. It involves deliberately doing harm to vulnerable human beings who have done no wrong in order to send signals to other would-be asylum seekers. It uses people as a means to an end, which is never just. Consequently laws passed to criminalise harbouring people who seek protection are also unjust, and may legitimately be broken for sufficiently serious reasons. These may include the urgency of the need to rescue people from the harm inflicted on them by unjust laws, or to proclaim publicly the injustice of the policy.
The main argument against breaking even an unjust law is that it will bring the law into disrepute. Certainly, those who break unjust laws must respect law. But respect for law means more than obeying laws. It means respecting the rule of law in society, which is built on the understanding that all people stand equally under the protection of the law. The law and its administration must serve the common good and not sectional interests. The responsibility for upholding the rule of law lies both with individual citizens and with governments. Above all, the laws that governments pass must be just. If they are not, respect for the rule of law may demand that we break unjust laws.
To respect the rule of law while breaking it is a delicate matter. It demands that we not act indiscriminately outside the law. We must also seriously, work in other ways to have the law changed and accept the punishment that may follow breaches of the law. Breaking unjust laws must serve the common good and not simply express our individual desires. If we act in the interests of people treated unjustly by the law, as is the case when offering sanctuary to women and children seeking protection, we must also be confident that our actions will actually benefit those people. In the case of sanctuary there are conflicting considerations. In seeking sanctuary, for example, oppressed and totally dependent people may gain self-respect by taking responsibility for their lives and by the solidarity they are shown. But we must recall that governments have acted vindictively towards asylum seekers involved in extralegal actions, be aware of the danger of vulnerable people harbouring high hopes only to see them dashed again. And above all we must give accompany people in order to prepare them to meet whatever comes bravely.
Finally, breaking laws must also be effective. Sometimes effectiveness will lie in the immediate benefit to people who are treated unjustly. More often it will lie in exposing the injustice of the law by highlighting its effects on vulnerable people and demanding a just policy. For martyrs effectiveness is often measured in centuries.