TCS Daily


Moral Courage

By Drew L. Kershen - February 7, 2003 12:00 AM

Despite a severe famine in southern Zambia, the Zambian government rejected maize from the World Food Program, a consortium of relief agencies. The Zambian government not only rejected the food aid but demanded that it be removed from the country. Why? Because some of the maize donated by the United States is transgenic. The predictable result of refusing food aid in this dire situation is that southern Zambians are desperate for food - surviving on wild fruit and plants, even poisonous tubers that must be carefully prepared to remove most of the poisons.

Under this situation of desperation, we read on Jan. 29 that 6000 southern Zambians had "overpowered an armed policeman and looted food aid" and, according to a government official, had "stolen" 4600 50-kilogram bags of U.S. maize from a warehouse in Sizanongwe. We were not surprised. Desperate people will act in self-preservation to gain access to safe, nutritious maize. One cannot expect starving Zambians passively to allow their government to remove good food from the nation. The grain was donated to the Zambian people for their survival, it was not a gift to the few people in charge of the government.

Our purpose is not describing the tragedy taking place in Zambia. We write to defend the Zambian people from the allegation that they engaged in illegal and, by implication, immoral conduct by their action of self-preservation. Far from acting illegally and immorally, we praise these Zambians for their moral courage.

The Defense of Necessity

Laws are meant to serve people; not people to serve laws. Only the most strict "legalist" could demand that the governmental prohibition against eating safe, nutritious transgenic maize be obeyed in the face of such necessitous circumstances. Sensible, rational legal systems recognize the defense of necessity to alleged violations of law. Thus, necessity is a defense to a charge of speeding when a parent rushes to a hospital with a child who drank a household chemical. By its actions, the Zambian government has already shown that it cannot act sensibly or rationally with regard to transgenic maize as food for Zambians. Indeed, the Zambian government is looting the life of its children. The moral obligation of any government is to defend, not to loot the life of its citizens. Hence, these southern Zambians may find that the defense of necessity, valid in law, is ineffective in practice because the Zambian government refuses to recognize the defense in this instance.

Even if denied the defense of necessity, these Zambians have acted with moral courage. Moral courage in the face of arbitrary and immoral law has roots in the tradition of civil disobedience. Civil disobedience in the tradition of Gandhi and King often is understood to require passive, public, non-violent resistance where the civil disobedient willingly sets a moral example by accepting punishment for the conduct. If civil disobedience is defined by these attributes, the southern Zambians may not qualify as morally courageous because they overpowered a police officer and have no intention of accepting punishment for obtaining food. However, civil disobedience in its broader sense also encompasses persons standing up for their rights through conscientious refusal to be degraded or to participate in degradation. Conscientious refusal allows civil disobedients to decide that they need not accept punishment for arbitrary and immoral laws. In its broader sense, the southern Zambians are civil disobedients worthy of being characterized as morally courageous.

Advancing the understanding one depth more, conscientious refusal has its moral underpinnings in the conflict between positive law and natural law and natural rights. Human life and human dignity as natural rights precede positive law and must yield to positive law only when the content of that positive law is itself moral, rational, democratically adopted, and fairly applied.

The content of the Zambian governmental decree banning transgenic grain is clearly immoral in light of higher natural law protective of human life and human dignity for starving Zambians. The scientific ignorance upon which the decree is based likely disqualifies the decree as rational.

Finally, the circumstances in which and by which the decree was issued calls into question whether the decree was democratically adopted or fairly applied. Positive law without these attributes of morality, rationality, democratic adoption, and fair application is not truly law. Rather such a positive law is arbitrary and capricious power masquerading as law.

When positive law masks arbitrary and capricious power, southern Zambians are not bound by that pseudo-law. On the contrary, southern Zambians are called to defend the higher law - their natural rights of human life and human dignity. They have so acted by gaining access to safe, nutritious maize originally meant exactly for them. The robber is he who violently takes things belonging to others. Do not be fooled by news stories that portray these 6000 Zambians unfavorably. Southern Zambians deserve praise for their example at Sizanongwe. Southern Zambians have shown the world moral courage.

Drew Kershen is Earl Sneed Centennial Professor of Law, University of Oklahoma, United States; Piero Morandini is Plant Biotechnologist, University of Milan, Italy.
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