Legality and morality are not the same

Photo Credit: Wesley Tingey

Photo Credit: Wesley Tingey

A lot of people like to equate the legality of something with morality. While I can agree that yes, most of us likely base at least part of our understanding of right and wrong on the law, to argue that something is either acceptable simply based on whether or not the government allows it at a certain point and time to me seems overly simplistic.

Because our laws are written by people, it’s undeniable that a sense of morality informs lawmaking on some level. The overriding moral foundation of countries like Canada is to guarantee individual freedom up to the point where it infringes on someone else’s freedom, also known as the harm principle. It is a simple yet incredibly versatile concept that we can see in a number of different places. Things like murder or assault are clear and simple examples of this principle in action. You can’t be guaranteed the right to murder because it can’t be universalized, meaning that if we all had the right to murder, we could all be dead.

However, even though we may all agree that some things ought to be illegal, things get more complicated when it comes to punishment for those acts. For example, most of the time in Canada, those convicted of first degree murder are eligible for parole after 25 years in prison (save for people who have been designated a dangerous offender). Some would argue that we should be able to give life sentences without the eligibility of parole, while others would argue that we should have the death penalty. It’s clear that the idea of the harm principle can still leave us with a lot of moral and legal questions.

The concept also gets muddier in other cases, like private property for example. When does the right for a landlord or a real estate company to buy up hundreds of houses to make a profit, negatively impede on the ability for an average family to own a home? While the harm principle is easily applied to some issues, for most, it brings up a whole host of questions and falls more so in the grey area.

However, there are a number of laws that don’t seem to have any moral basis, which is exactly my point. Take marijuana for example; why would it be against the law for a consenting adult to smoke marijuana at their own home for over 100 years? While your neighbours might not like the smell outside, it doesn’t pose a threat to anyone except the user. It’s even more strange when you consider that cigarettes and alcohol, both of which are far more deadly than marijuana, were fully legal during that same time.

The truth is, marijuana was made illegal in Canada based on a racist moral panic that arose in the 1920’s due to writings from Emily Murphy, one of the Famous Five that fought for women’s suffrage. She claimed that Chinese immigrants brought marijuana over to Canada with them in order to “corrupt the white race”. So to that I would ask, what about that is moral? If the Canadian government criminalized marijuana over some racist rantings from the 1920’s, then clearly they aren’t a source of moral authority on the issue.

A larger and more abhorrent example would be the Indian Act, 1876. The act was designed to assimilate the “Indian people” according to Prime Minister John A. MacDonald, “as speedily as they are fit to change.” The act, still around today though with many different amendments since the 1800’s, dictates all aspects of Indigenous life in Canada. One of the most infamous elements of the act was the 1884 amendment that mandated education for Indigenous children, which eventually resulted in the creation of the residential school system. This saw children being forcibly taken away from their families to live at residential schools run by the various Protestant and Catholic churches in Canada at the time. Children were forced to convert to Christianity and were verbally, physically, psychologically and sexually abused, faced malnutrition and disease and of course, deep and cutting intergenerational trauma.

The Indian Act more broadly was used as a framework for the segregationist laws of apartheid South Africa, a hideous blot on Canadian history that many don’t know or would like to forget. But the reality is that the Indian Act is real and still around today, albeit in a different form than in the past, but it remains a hideous reminder of our history and the vast moral limits (and failings) of the law. It doesn’t matter to me or most of you I’m sure, whether the law allows you to rip children away from their families, it’s always morally wrong.

This is only one example of the many times the law has got it wrong in Canada’s past. Whether it was the internment of Ukrainian-Canadians during World War I, Japanese and German-Canadians during World War II or the decision by Prime Minister Mackenzie King to not accept fleeing Jewish refugees to enter Canada during the holocaust, saying that “none is too many”. This isn’t to make people feel guilty for Canada’s past, but just to highlight how many times (and how often) the law simply gets it wrong and history does not reflect kindly on them for it.

Hopefully this has shown to anyone reading that arguing that something is right simply because it’s the way it is makes absolutely no sense. While it may be comforting to appeal to the authority of the law, a lot of the law and their authority for that matter comes from a place of malicious intent. Whether we know that to be the case or not, history does matter, if only so we can try and make our laws reflect a truer, more positive sense of morality going forward.

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