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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Germany's election isn't about who will win, but who gets to join Merkel in government

Even small changes in vote share could affect who rules with the chancellor's CDU.

The leaves are falling and the ballot boxes are being given a final polish. It should be peak Wahlkampf. (Trust us Germans to have a word for "campaign" which sounds like something that should be barked by a soldier in a black-and-white film.)

Yet, instead of "peak campaign", with just days to go before polling day, we have an almost deadly dull one. Europe’s largest nation is being gripped by apathy. Even the politicians seem to have given up. Four years ago the then Social Democratic (SPD) challenger for chancellor, Peer Steinbrück, was so desperate to grab attention that he posed on a magazine front cover pulling the middle finger.

Instead Chancellor Merkel’s strategy of depoliticising the economic and social challenges Germany faces, and being endorsed as the steady mother of the nation, seems to once again be bearing fruit. Her Social Democratic contender has simply not been able to cut through.

So much so that for most voters the differences in policy agenda between Merkel’s Christian Democrats (CDU/CSU) and her main challenger Martin Schulz’s SPD are hard to detect. Not least because the SPD has spent the past four years serving under Merkel as the junior partner in a so-called "grand coalition". It doesn’t make it easy to distinguish yourself when you have just spent the last four years agreeing in cabinet.

This is dangerous and careless in an age of economic and political insecurities where voter volatility has reached new heights, and the radical right-wing AfD is forecast to get a vote share in double figures – a tally that would make it the third strongest party in the Bundestag.

It’s business as usual for Merkel who has copied the playbook that so successfully delivered three victories: picking no fights and managing expectations. Why change a winning formula? She wants to carry on chasing the political legacy of her hero Helmut Kohl by securing a fourth term in office.

Once again the "safety first" strategy is paying off. Her CDU/CSU is on course with the polls showing a solid 17 per cent lead over Martin Schulz and the SPD.

Merkel may be cruising to victory, but Germany’s proportional electoral system means that she won’t be able to govern alone. Which means the most exciting question in the German election isn’t who is going to win, but with whom is Merkel going to form another government. All eyes are on the different combinations of parties that would provide the chancellor with a new majority.

As it stands, it is very likely that for the first time ever, the Bundestag will be host to six political parties. More dauntingly, it will also be the first time since the Second World War that members of the radical right-wing will be sat in the chamber. Arguably, this political setback may be seen as a failure of moderate forces to find the right political solutions for the refugee and financial crisis – the AfD is essentially the offspring of both – but it is also part of a wider populist surge in Europe and North America.

This fragmentation of the party system in Germany will make it a challenging task for CDU/CSU to form a coalition. However, with the return of the liberal, and pretty unashamedly neo-liberal FDP, Merkel can potentially revert to a traditional centre-right ally. This would please those in her party who have been sceptical of her socio-economic move to the left, and blame her for the rise of the right-wing populists.

A report by the University of Mannheim provides us with a useful, if firmly scholarly, political version of those dating compatibility quizzes we all like to do in idle lunch hours. It finds that a coalition between the CDU/CSU and the FDP would be a natural match. They would agree on 20 out of 38 of the main policy issues in German politics. 

On which issues would coalition partners agree/disagree?

Only the other traditional “bloc coalition” between the SPD and Greens, which lifted Gerhard Schröder into the chancellery in 1998, would do better, matched on 24 issues overall. The study matches preferences on key economic, social, domestic and foreign policy of all major political parties and maps potential areas of conflict for all realistic coalition options. But polls currently show that neither of the naturally fitting centre-right or centre-left blocs would have enough seats to make a coalition work.

Which leaves three possible scenarios. The most intriguing would be the "Jamaica coalition" of the CDU, FDP and Greens (so called because the three party colours are the same as the Jamaican flag). Such an option has never been tried before at the federal level but is currently in power in Schleswig-Holstein. Alternatively, Merkel could follow the example of Saxony-Anhalt and try governing with her own CDU/CSU alongside both the SPD and the Greens. However, the new study finds that a three-way pact would be more prone to conflict and harder to negotiate than any of the two-party options.

More than two parties in a coalition would be an interesting novelty at the federal level, but disagreement on individual policy areas is expected to be considerably greater. The so-called "traffic-light-coalition" of the SPD, the Greens and the FDP would agree on 11 topics, yet disagree on 20 issues. And on top of issue-specific conflicts it would be more difficult to bridge ideological differences between parties at the different ends of the left-right dimension, as such between the SPD and FDP.

In the end it will all depend on how the numbers play out on election day this Sunday. The fact is that even minor shifts in voting behaviour from the current poll predictions would make a major difference to the options for government formation.

So, what should you look out for on election night? I would suggest keeping an eye on the liberals. What happens to the FDP’s vote share is crucial for whether they can return to their role as coalition queenmaker, after failing to jump the 5 per cent hurdle in 2013 and ending up with no seats. If the business-friendly liberals cannot deliver a majority for Merkel, the ball will be firmly back in the SPD’s court.

Gerhard Schröder used to say that a chicken is fat at the end (it makes more sense in German).

But if Schulz’s campaign does not pick up momentum in the closing hours of the campaign, and the Social Democrats' vote share collapses to around 20 per cent, its leaders will find it difficult to justify another grand coalition to SPD members.

They will likely be once again asked to endorse any grand coalition with the traditional conservative enemy in a one-member-one-vote ballot. Many inside the party fear that another four years as junior partners to the strategically astute Merkel could be the end of the road for the Social Democrats.

Florian Ranft is a senior researcher and adviser at Policy Network