Dura lex sed lex
Reflections on Latin maxims about the law
In his Letter from Birmingham Jail, MLK wrote “an unjust law is no law at all”. This was not an original thought, of course—MLK himself credited it to St. Augustine, who is just one of many historical figures who have expressed this idea.
In Latin, the phrasing is generally given as “lex iniusta non est lex”, or “an unjust law is not law”. Contrasted with another equally intelligent-sounding Latin phrase: “dura lex sed lex”, or “the law [is] harsh, but [it is] the law”. A less literal but more accurate translation might be “even though the law is harsh, it is nevertheless the law”.
Whenever the law offers an answer we don’t like, our challenge as citizens, theoretically subject to said law, is to determine which of these two applies. Do we obey a law with which we disagree while working to change it through and within the system, or do we disobey a law which we view as unjust and thus force everyone to confront its injustice—hopefully, accelerating its fall?
Which inevitably comes down to the definition of “justice”. Who gets to decide whether a law is unjust?
America is a nation under the (theoretical) rule of law. We have the Constitution—the supreme law of the land—plus Federal, State, and local laws. At the same time, America came to exist as a nation because a group of people rebelled against the (technically) lawful authority of the King. They recognized that they were doing something outrageous and controversial, so they felt compelled to explain themselves in the opening paragraphs of the Declaration of Independence.
Their argument was that the King had violated the colonies’ “unalienable Rights”—rights with which they are “endowed by their Creator” and which, therefore, are above any man-made laws. By violating these rights, the King had forfeited his lawful authority over the colonies. The colonists, in turn, had not only a right but a positive duty “to throw off such Government”.
My wallet is in my pocket. It is mine, and I have physical possession of it.
If you reach into my pocket against my will and pull out my wallet, you have stolen my wallet. You have physical possession of it. However, it is still mine—even if I don’t have it any longer.
So if the question is, “who has the wallet?” then the answer is, obviously: you do. However, if the question is, “whose wallet is it?” then the answer is, just as obviously: it’s mine. The fact that you have it doesn’t mean that it’s yours.
In some jurisdictions, I may be justified in using force to retrieve my wallet—but only exactly enough force to get back what’s mine. I can’t break your nose “teach you a lesson”, I can’t take your wallet as penalty for trying to steal mine, and so on. In other jurisdictions, I can’t even do that much—if I put my hands on you for any reason other than to stop an imminent danger, I myself am guilty of a crime. I have to call the police to get my wallet back. Dura lex sed lex.
Asking “who won the election?” is analogous to asking “who has the wallet?” The one who has the wallet is the one who has physical control of it. The one who won the election is the one who was certified as the winner. In 2020 it was Biden, in 2016 it was Trump, in 2012 and 2008 Obama, and so on.
But there is no plain-language election-related question we can ask that is analogous to “whose wallet is it?” There are several close approximations:
Who should have won the election?
Who would have won the election, if it had been conducted in a completely free and fair manner?
Who was the rightful winner of the election?
Clearly, all of these are tangled up with value judgments: “should”, “free and fair”, “rightful”.
Election Day is two short days from today. That night, we may well have a declared (though not yet certified) winner. It is also possible that, for reasons outside the scope of this post, the winner may be declared days or even weeks later.
The point is, a winner will eventually be announced. The loser will (hopefully) concede. And the winner will be certified a little while later. Someone will be holding the wallet.
Regardless of who wins, a significant percentage of the country will be unhappy with the result. I no longer think the breakdown is quite 50-50—I think it’s way more lopsided than that—but for the sake of this discussion it doesn’t matter if it’s 50% or 33% or even just 25%; it’s still tens of millions of people.
It’s not inconceivable that the loser will not accept their loss. Based on certain recent statements, this possibility is not confined to any one side. There is a very real possibility that either side, if it loses, will challenge the legitimacy of the election itself and will flat-out refuse to accept the other side’s victory. What this means in real life—what people will actually do if they refuse to accept the results—remains to be seen.
And then the question becomes: which Latin phrase is the correct one? Should we accept the unpleasant results and continue to work patiently within the established order? Or should we refuse to accept the results, seeking to upend the order and replace it with one more to our liking?
Whether you side with the colonist racist sexist Founding Fathers or with the Communist philandering anti-American radical MLK, your idols respected the rule of law. They both believed that the law should only be broken when the law itself contradicts some higher Law.
As the Founding Fathers put it, all men:
“are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”1
It is only when the actions of the King violated these unalienable Rights that the colonies gained the right—and duty—to rebel.
As MLK put it:
A just law is a man made code that squares with the moral law or the law of God.2
Because segregation rejects the equality of all people before God, it is an unjust law. Being a manmade law, it is subordinate to God’s Law, and therefore void.
Anyone who invokes the example of the Founding Fathers or of MLK to justify a violation of election results, must first meet the burden of proving that some higher Law has been clearly violated. Only then can the law be called “unjust”. Only then would disobedience be justified.
Short of that, we are duty-bound to respect the law. If necessary, to work within the law to change it.
P.S.: If you believe in a higher Law, then by definition you believe in a force higher than humanity—a Law-giving Creator of some sort. Sorry, atheists.
The Declaration of Independence
Letter from a Birmingham Jail
"Which inevitably comes down to the definition of “justice”. Who gets to decide whether a law is unjust?"
There lies the crux of the problem with the scales of justice tipped in guberments favour!
Offline question from a reader:
“what if it isn’t a matter of an unjust law but rather a government breaking their own laws?”
I believe that there is legal precedent for what to do in this case. If, in fact, the government is shown to be breaking its own laws and refusing to correct its behavior… I think that it would be appropriate to consider that an “abuse and usurpation” evincing a “design to reduce [us] under absolute Despotism”.