David Allen Green

A critical and liberal look at law and policy

Civil disobedience and the Rule of Law

Why breaking the law should not be the first resort.

By David Allen Green Published 22 February 2012 16:28

When should we not comply with the law? For some, the answer to this question is easy. The law should be disregarded when the law is unjust. There is, the argument goes, no reason to adhere to any law when that law is wrong. This is even the case in a modern democratic society where those making and enforcing the law supposedly have some sort of mandate of legitimacy. It would appear that any such law is made to be broken.

Against this view is the absolutist notion that the law is always to be obeyed without any question. In no circumstances can one take the law into their own hands. The only imperative is to act in accordance with lawful authority, regardless of the particular law and concerns about its source: there is nothing to be done but to do what you are told.

These extremes of order and disorder are invariably attractive to the unthinking. Both the shallow radical and the thuggish totalitarian do not need to think hard about any given situation; indeed, they do not need to think at all. But both ignore the "Rule of Law" and its crucial and precarious role in a liberal state.

The great left-wing historian E. P. Thompson pointed out that far from being necessarily an instrument of oppression, the Rule of Law can provide a great benefit for the weak and unfranchised. If all actions require a lawful basis, then those who otherwise would readily abuse power were also restrained by the law. It is not open for those with power to simply act as they will. Of course certain laws were unjust and unacceptable; but the general application of the principle that one should obey the law may protect the vulnerable from the knave and the fool.

In modern capitalism, the people most likely to casually disobey the law are actually not the "great unwashed" of student protesters and leftist activists. This is for the simple reason that a requisite of abusing power is to have power in the first place.

Instead, casual law-breakers are -- as the hacking, banking, and expenses scandals show -- often the very politicians, financiers, tabloid journalists, and police officers who routinely hold their fellow citizens to standards which they are not willing to meet themselves. They may talk of absolute adherence to the law, but they walk just like any superficial revolutionary. The powerful can be civilly disobedient, too.

The key problem with the Rule of Law in this country is not that, from time to time, protesters may stay in certain private and public spaces too long. It is rather that many with power feel -- or know -- they can get away with far worse abuses, from non-complying with financial regulations to bribing public officials. Indeed, the police officer happily using excessive force is as much a law-breaker as the aggravating trespasser, and his or her culpability is actually much worse because of the coercive force they are abusing.

George Orwell once described this country as a family with the wrong members in control. It now often feels that like a jurisdiction with well-placed law-breakers beyond any real control. Hapless individuals can end up with criminal records for minor misdemeanours, with their lives ruined, whilst those whose abuses have affected the lives of many others keep their pensions and usually their jobs. A citizen can lose their job or their liberty because of a moment's stupidity of a police officer, whilst a deliberately unlawful act by that same officer may get a written warning at worst.

The Rule of Law is therefore important because it can be the only thing which can check or deter the powerful from wrong-doing. It is a doctrine for the protection of all of us.

This, however, does not mean that there should never be civil disobedience. It instead requires us to consider the wider implications of what would otherwise be a deliberate unlawful act. Is the proposed course of action a mere gesture, some pose as a latter-day outlaw? Is a person breaking the law just to show that they can? Or is it really the case that the principle of justice cannot be asserted in any other way than to undermine the standard requirement of legality?

Each of us takes the daily benefit of the lawful behaviour of others. We are all better off because other people comply with the law. To disobey a law should thereby not be a selfish ploy or an act of vanity. There should be a greater and well-defined public good as the prize of breaking the law, and any breach should be no more than necessary than to obtain that prize. There are many ways to discredit and change a law other than to break it. On occasion it may perhaps be entirely just to disobey the law; but over time, the Rule of Law is fundamental to a just society.

David Allen Green is legal correspondent of the New Statesman

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22 comments

Tue, 2012-07-17 10:50 — Trendy (not verified)

A political crisis has gripped Romania as its left-leaning prime minister, Victor Ponta, slashes and burns his way through constitutional institutions in an effort to eliminate his political competition.

Tue, 2012-07-17 05:03 — Simonstar (not verified)

The law is put in place so that society can run more smoothly and justly, and chaos erupts when no one obeys the law. One should seek to obey the law as a priority, unless the law is unjust and against morals.

Wed, 2012-06-13 17:02 — Andrew Chapman (not verified)

This is quite a good article. Many new questions emerge to the surface, all you need do is to read further information about the issues. Only then one can form a final view on a particular subject. Otherwise everything is seen only in the dimension of cum more black and white. The natural logic of evaluating things before vstavane skrine they were properly cognitively processed is a horrible mistake, made by those less intelligent. People should not throw away their common slovakia sense easily. Anything and everything deserves appropriate time for making judgements.

Wed, 2012-02-22 17:45 — Slow Boy (not verified)

“On occasion it may perhaps be entirely just to disobey the law; but over time, the Rule of Law is fundamental to a just society” - appreciate the sentiment, but not sure of the soundness of the logic.

Thu, 2012-02-23 22:51 — Martin Budden (not verified)

@Lloyd Jenkins

Our laws are a combination of those enacted by Parliament and those developed through decisions by the courts (called common law or case law). Judges legislate and jury decisions can result in de facto changes in the law. Indeed David Allen Green has blogged on a recent case where this happened: http://www.newstatesman.com/blogs/david-allen-green/2012/01/crown-court-... - here a jury's refusal to convict has resulted in a de facto change in the obscenity laws.

Wed, 2012-02-22 18:02 — Awake!

'Each of us takes the daily benefit of the lawful behaviour of others'
A nice thought, and an interesting piece, agree that a rule of law is fundamental to a just society. I wonder whether enquiry into where this rule is derived from might yield a physical 'cashing out' of rule of law i.e. an imperative that one might be able to use on a daily basis.
In light of the stiffling way in which we organise ou
r society now, in which it becomes more and more difficult to make one's voice heard, this is a timely piece indeed.

Wed, 2012-02-22 18:40 — Alex Baldwin (not verified)

"The law should be disregarded when the law is unjust."

To pick up on this: A distinction I would draw is between breaking a law because it is unjust (which, though sometimes foolish, would be behaviour to take pride in) and breaking the law for the sake of some (perceived) greater good.

Martin Luther King broke segregation laws. Segregation laws are bad, and deserved to be broken. In breaking them he helped bring an end to them. For an example of the second case, you could imagine somebody who believes that they are right to break the laws that would prevent you from assaulting somebody (maybe a wrinkly oligarch?) in order to make some vague political point.

Fri, 2012-02-24 07:37 — Luddite (not verified)

What is it about the democratic process many on the political-left can't handle?

Wed, 2012-02-22 20:23 — @Morus1516 (not verified)

test

Wed, 2012-02-22 20:45 — Antonio Lorusso (not verified)

"Each of us takes the daily benefit of the lawful behaviour of others."

No, Each of us takes the daily benefit of the moral behaviour of others. We aren't refraining from, murdering each other because of words on a paper. Conversely people obey bad laws because the consequences aren’t worth breaking them.

That’s worth repeating. By and large, the good laws are “obeyed” because of people’s moral character, and by and large, bad laws are “obeyed” because of the injustice that would result from breaking them. All the difference in the world.

Are we perfect? No, but to misquote Weinberg:

"With or without laws, good people can behave well and bad people can do evil; but for good people to do evil—that takes laws."

Most people wouldn't dream of imprisoning you in their basement for using mind altering drugs, they understand that would be immoral, even if they despise the use of drugs - but sprinkle on the magic pixie dust of the lawhead argument and suddenly they are all for it, as if there is suddenly nothing wrong with imprisoning someone just because you don’t like them. Many people like to express outrage about the political prisoners in China, only a few of those poeple want to talk about our own thought crime prisoners. (And no I don't want to live in China, but that doesn't make what we're doing is good, it only makes us less bad than the Chinese)

When evil people want to do evil, and not only get away with it with little fear of consequences, but actually be praised for it, the greater good argument, be it secular or theological, is their only tool, that's it’s insidious nature.

It should have been consigned to the dustbin of history a long time ago. Ask yourself why you can’t make your argument without it.

Thu, 2012-02-23 14:41 — Carl Gardner (not verified)

@Alex Baldwin:

"A distinction I would draw is between breaking a law because it is unjust (which, though sometimes foolish, would be behaviour to take pride in) and breaking the law for the sake of some (perceived) greater good.

This distinction makes sense to me, too. I think in terms of "direct" disobedience, like non-payment of the poll tax, and "indirect" disobedience, such as damaging property in order to protest against some other evil. I think broadly - broadly - the first deserves our respect more than the second.

I do think it depends on the circumstances, though: I'm not sure what laws those who campaigned for women's votes could have "directly" disobeyed, for instance.

Of course I think it also matters hugely what sort of society you're in. I think we should be slower to disobey in a democratic society, where we can influence the law and debate it openly, than we would be somewhere else.

Thu, 2012-02-23 15:12 — Lloyd Jenkins (not verified)

@Martin Budden

You haven't explained how 12 randomly selected jurors count as 'the people'. I don't see how they can, or how they can effectively override legislation, given their utter lack of accountability.

Wed, 2012-02-22 22:16 — Dave Angel (not verified)

@Mike Tonge

"As far as I know (please correct me if I'm wrong), it is not illegal to lie to a member of the public. All to often officials will use this fact to brow-beat people into complying with their wishes."

Members of the public can also lie to officials, in order to silence other members of the public. It has happened to me and, frustratingly, destroyed my life.

Wed, 2012-02-22 22:35 — Lloyd Jenkins (not verified)

@Antonio Lorusso

You've assumed far too much moral agreement on the part of the populace. People have massively varying concepts of what is right and wrong. For example, many people think that drug users should be in prision because they think drugs are harmful to society whereas others think that prohibition does more harm than good. Only one of those camps can have their way and without law there's no way to make that decision.

Wed, 2012-02-22 23:14 — William Ormerod

It's easier to break the law after 'New Labour' over legislating year on year! That why we are having problems with Civil disobedience and the Rule of Law.

And, delivering writs by facebooks accounts are going to save the ccurts time(!) I think not!

Wed, 2012-02-22 23:15 — Martin Budden (not verified)

I was always taught that principled civil disobedience involved breaking the law while accepting the attendant legal consequences.

The tying of accepting the legal consequences with the disobedience has a number of implications:

1) Civil disobedience is not undertaken lightly, since you accept that you might be punished.

2) It makes it clear that you are challenging a particular law, not the rule of law itself.

3) (and perhaps most importantly) by being willing to be tried for your actions you are putting the ultimate decision about the law directly into the hands of the people (in the form of a jury).

I think this third point is extremely important - ultimately whether a law is just is determined by the willingness of a jury to convict those who break that law.

So, especially in the case of newly enacted law, an act of civil disobedience can be regarded as taking lawmaking power from elected representatives and placing it directly in the hands of the people (in the form of a jury).

Tue, 2012-03-13 14:23 — Sandfire (not verified)

Luddite:

Did you read the article? as you can see it's mostly those on the political RIGHT who abuse the rule of law frequently - MP's, Bankers and Hacking journalists.

Democracy is all well and good - so long as the 'right people' are in charge.

How do you feel about espousing the legitimacy of Democracy when half the country have decided against it by not voting?

Surely this is merely fascism, where one minority (the voters of the winning party) is being given the ability to rule over the majority? (those from losing parties and those who 'abstained'.

It's funny how the immediate tune you play is the left dislike democracy - when both Communism and Anarchy are far more democratic than ANY modern Democracy.

Tue, 2012-03-13 14:27 — Sandfire (not verified)

...and in an interesting twist to this legal acceptance we have the challenge that NO LAWS A LEGAL TO BEGIN WITH!

http://www.ukcolumn.org/article/cat-out-bag

Funny how these acts of civil disobedeince (and in this case legitimate legal challenges) rarely make it into the public eye.

You will notice on the website the video from the 'citizens arrest of a judge' have been removed "at the request of the UK Government"

Now what do you 'free speech democrats" have to say about that then?

Thu, 2012-02-23 00:22 — FA

Great article.

Print it out, laminate it and have delivered to Laurie Penny. She needs to learn why the rule of law is valuable.

Thu, 2012-02-23 03:32 — Alex Baldwin (not verified)

@Martin Budden

Excellent comment! I had meant to put something quite similar myself but I can't improve on that.

Wed, 2012-02-22 16:59 — Mike Tonge (not verified)

Great piece, but you missed one important point.

The great and good you mention and yourself know and understand the rule of law. However, I and most members of the the British public do not. So when a Policeman tells me it is illegal to take a picture of his car on double yellow lines, what can I do?

As far as I know (please correct me if I'm wrong), it is not illegal to lie to a member of the public. All to often officials will use this fact to brow-beat people into complying with their wishes.

We cannot be expected to comply with the rule of law if we cannot trust the people explaining those rules to us.