Towards a Jurisprudence of Evil Law

Abstract

This dissertation examines the link between law and extreme moral iniquity, seeking to provide a first comprehensive account of the nature of evil law. It consolidates existing philosophical discussions associated with evil law and enriches these debates by testing their arguments against the historical examples of the evil legal systems of Nazi Germany and Stalin’s Soviet Union, as well as the law of slavery in the antebellum United States. Firstly, it narrows down the category of evil acts and practices as necessary for its application to law and defends using the term ‘evil’ against those seeing it as redundant, empty, subjective, and even dangerous. Secondly, it identifies evil law as qualitatively distinct from bad or unjust law, and defines evil law as law, which, if interpreted in its best light, will cause or enable infliction of intolerable harm (including atrocities) to the victims themselves if not pre-empted by external factors. It also describes different types of evil laws – duty-imposing, power-conferring, permissive, and legitimating – and provides an account of evil legal systems as those containing a significant number of evil laws central to their material identity. Thirdly, it claims that evil law is law in the fullest sense of this word, notwithstanding objections from such law’s external and internal immorality. Fourthly, it posits that law does not hinder but helps evil regimes by securing coercion, coordination, legitimation, education and propaganda, and identity building. Fifthly, it grounds a right and a duty to resist evil law in participatory equality, human dignity, and autonomy, and limits them when resistance involves intolerable harm on others or oneself. Sixthly and finally, it argues that successful resistance can take many forms, but is ultimately only possible if one moves beyond the confines of legal interpretation, or resists from the outside and not from the inside. These conclusions paint a fuller picture of evil law, aiding both those who seek to understand it and those who aim to oppose it.