When Law and Morality Don't Meet

Is there a connection between Cuban boy Elian Gonzalez and the Singaporean church deacon who was jailed for harbouring illegal immigrants? It is this: At the heart of both cases seems to be the application of law that just does not seem to be morally right. Both cases have caught the public imagination here.

Nobody mind that Elian's Miami relatives exploited the six-year-old boy politically to score points against the Castro regime. Most liberals, on the other hand, were concerned that repatriating Elian would deprive him of a new life. Some even asked if the law really needed to be applied in Elian's case. The church deacon's misfortune ignited similar misgivings. Unfortunately for him, being a serious matter, carried a mandatory jail sentence. But surely he is a morally-upright citizen. How can we send him to jail?

The Chief Justice himself, no less, regretted having to maintain the jail term. Misgivings in both cases are likely to be grounded in some assumption that good laws must also be morally right. To be a curmudgeon, let us hold some contrary views. First, let us ask what should be the appropriate baseline for either case. For Elian, should the appropriate reference point be children who live legally in the US, as is assumed? Why not Cuban children who remain in Cuba? In the second case, why assumes a baseline where the landlord rents out his apartment to illegal aliens willfully but, when exposed, claims to be unaware of their status? Why is the baseline not the conscientious landlord who checks and re-checks with the Singapore Immigration and Registration if his tenants remain legal residents? Again, why assumes that the proper question to ask in Elian's case is: "What are his rights?" Why are people not asking instead if, resolved differently, the case might not encourage other aliens to move their children illegally into the US?

Similarly, is it so unacceptable to ask if exempting the deacon from a jail sentence might not encourage other citizens caught in a similar quandary to risk harbouring illegals? When we focus on a particular child or a specific individual who holds some church office, it does seem barbarous not to exempt either from the full impact of the law. But seen as potentially representative of a whole slew of similar cases, sending Elian home or the apparently inappropriate jail sentence may not be that much of an overkill.

The point is that it is important what questions are asked in a difficult situation. In other words, it matters how the agenda is set. More important, the law is morally thin. This might come as a surprise to some, but the law is not some sacred text of the principles of justice. It is only a limited charter of government. It is but a determinate list of rights. Legality and morality do not map onto each other necessarily, or even most of the time. In fact, legality must cover a smaller area than morality; the narrower the reach of the law, the smaller the band of ambiguity it needs to deal with.

The contesting parties are presumably interested in overcoming ambiguity. The law must strive to enable that. And the law does this best when it restricts itself to a very narrow band of issues over which the courts will decide after hearing arguments the contending parties advance. One may even say that this is the genius of the common law.

The law does not, and must not, pretend that it can know more than what it can discern. In that sense, the knowledge claims of the law are very, very modest. The courts must deal with only questions that are clearly judicial, not questions of morality about which the law does not, and must not, claim to have special knowledge. This is why judges do not try to override laws, especially in emotionally-charged cases. If they try to do so -that would be judicial activism - and they would be on dangerous ground.

They would be challenging the will of the people, expressed by their elected representatives. Instead, judges must allow for the disciplined exercise of legislative power by the government of the day. That is, the courts must abide by laws in the form drawn up by our legislators. When the Elians and the deacons of this world rile us, we should pause and remember that the law is much more modest, than we are, about what is morally knowable and what is not. Let the law be law.

By Kim Jeong-eun(argusitnl@maincc.hufs.ac.kr)