Civil disobedience and the Rule of Law

Why breaking the law should not be the first resort.

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

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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PMQs review: Theresa May shows how her confidence has grown

After her Brexit speech, the PM declared of Jeremy Corbyn: "I've got a plan - he doesn't have a clue". 

The woman derided as “Theresa Maybe” believes she has neutralised that charge. Following her Brexit speech, Theresa May cut a far more confident figure at today's PMQs. Jeremy Corbyn inevitably devoted all six of his questions to Europe but failed to land a definitive blow.

He began by denouncing May for “sidelining parliament” at the very moment the UK was supposedly reclaiming sovereignty (though he yesterday praised her for guaranteeing MPs would get a vote). “It’s not so much the Iron Lady as the irony lady,” he quipped. But May, who has sometimes faltered against Corbyn, had a ready retort. The Labour leader, she noted, had denounced the government for planning to leave the single market while simultaneously seeking “access” to it. Yet “access”, she went on, was precisely what Corbyn had demanded (seemingly having confused it with full membership). "I've got a plan - he doesn't have a clue,” she declared.

When Corbyn recalled May’s economic warnings during the referendum (“Does she now disagree with herself?”), the PM was able to reply: “I said if we voted to leave the EU the sky would not fall in and look at what has happened to our economic situation since we voted to leave the EU”.

Corbyn’s subsequent question on whether May would pay for single market access was less wounding than it might have been because she has consistently refused to rule out budget contributions (though yesterday emphasised that the days of “vast” payments were over).

When the Labour leader ended by rightly hailing the contribution immigrants made to public services (“The real pressure on public services comes from a government that slashed billions”), May took full opportunity of the chance to have the last word, launching a full-frontal attack on his leadership and a defence of hers. “There is indeed a difference - when I look at the issue of Brexit or any other issues like the NHS or social care, I consider the issue, I set out my plan and I stick to it. It's called leadership, he should try it some time.”

For May, life will soon get harder. Once Article 50 is triggered, it is the EU 27, not the UK, that will take back control (the withdrawal agreement must be approved by at least 72 per cent of member states). With MPs now guaranteed a vote on the final outcome, parliament will also reassert itself. But for now, May can reflect with satisfaction on her strengthened position.

George Eaton is political editor of the New Statesman.