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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Bomb Isil? That's exactly what they want

The government appears not to answer the nature of its enemy, warns Maria Norris.

As MPs are set to vote on further airstrikes in Syria, it is difficult to shake off the feeling that the government does not fully appreciate the complexity of the problem Isil poses. Just a cursory glance at its magazine, the pronouncements of its leaders and its ideology reveals that Isil is desperate for Western bombs to fall out of the sky. As Martin Chulov argues, Isil is fighting a war it believes was preordained since the early days of Islam. Isil’s obsession with the city of Dabiq, in Northern Syria, stems from a hadith which prophesises that the ‘Crusader’ army will land in the city as a precursor to a final battle where Islam will emerge victorious. Dabiq is also the name of its magazine, which starts every issue with the same quote: "The spark has been lit here in Iraq, and its heat will continue to intensify -- by Allah's permission -- until it burns the crusader armies in Dabiq". Isil wants a war with the West. If we don’t negotiate with terrorists, then we also should not give them what they want.

Further, bombs are indiscriminate and will inevitably lead to the suffering of those trapped in Isil territories. Isil is counting on this suffering to swell their ranks. Civilian suffering from airstrikes only underline the narrative that the West is at war with Islam, which plays directly into Isil’s hands. And despite misleading headlines and the genuine government concern with individuals fleeing to Syria, Isis is supremely unpopular. It is no wonder that its magazine is filled with glossy adds begging people to move to its territories.  You cannot be a state without people. Terrorist attacks such as Paris thus have a two-pronged purpose: they provoke the West to respond with its military, and they act as a recruitment drive. The fact that fake Syrian passports were found around the sites of the Paris attacks is no coincidence as Isil are both seeking to stem the flow of refugees from its territories and hoping to provoke an Islamophobic backlash. They hope that, as more Muslims feel alienated in the West, more will join them, not just as fighters, but as the doctors, nurses and teachers it desperately needs.

In addition to this, airstrikes overlook the fact that Isil is a result of what Fawaz Gerges calls a severe, organic institutional crisis in the Middle East. In a lecture at the London School of Economics earlier this year, Gerges pointed out the dysfunction created when a region that is incredibly resource rich also is also deeply undemocratic, riddled with corruption, food insecurity, unemployment and poverty. This forms an institutional vacuum that is filled by non-state actors as the population does not trust its political structures. Further, the civil war in Syria is also the site of the toxic soup of Middle Eastern state dysfunction. Iran supports Assad, Saudi Arabia and the Gulf countries, fund anti-Shia groups in Syria. Throw in the Kurdish conflict, Turkey’s ambiguous position and Russian bombs, it is difficult to see how airstrikes will solve anything.

Finally, it is crucial that Isil is seen as a direct result of the Iraq war. The American-led invasion destroyed the institutions, giving the Shia majority power almost overnight, creating deep dissatisfaction in the Sunni regions of Iraq. On top of this thousands of foreign fighters flooded Iraq to fight the invaders, attracting disenfranchised and angry Sunnis. The result is that since 2003, Iraq has been embroiled in a sectarian civil war.  It is in civil war, inherently connected to the Iraq War, that you find the roots of Isil. As even the Prime Minister concedes that ground troops are necessary, albeit it regional ground troops with its own set of problems, it is important to consider what further monster can arise from the ashes of another ill-thought out military intervention in the Middle East.
We have had decades of military intervention in the Middle East with disastrous consequences. Airstrikes represent business as usual, when what we actually need is a radically new approach. Who is funding Isil? Who is buying its oil? How to curb Isil’s recruitment drives? What can be done about the refugees? How to end the conflict in Syria? What happens to Assad? These are questions hopefully being addressed in talks recently held in Vienna with Russian, Ira, the USA, France, Syria’s neighbours and the Gulf states. Airstrikes do not answer any of these questions. What airstrikes do is give Isil exactly what it is asking for. Surely this is reason enough not to bomb Syria. 

Maria W. Norris is a PhD candidate and a teacher at the London School of Economics and Political Science. Her PhD is on the UK counter-terrorism strategy since 9/11 and its relationship with identity. She tweets as @MariaWNorris.