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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Like it or hate it, it doesn't matter: Brexit is happening, and we've got to make a success of it

It's time to stop complaining and start campaigning, says Stella Creasy.

A shortage of Marmite, arguments over exporting jam and angry Belgians. And that’s just this month.  As the Canadian trade deal stalls, and the government decides which cottage industry its will pick next as saviour for the nation, the British people are still no clearer getting an answer to what Brexit actually means. And they are also no clearer as to how they can have a say in how that question is answered.

To date there have been three stages to Brexit. The first was ideological: an ever-rising euroscepticism, rooted in a feeling that the costs the compromises working with others require were not comparable to the benefits. It oozed out, almost unnoticed, from its dormant home deep in the Labour left and the Tory right, stoked by Ukip to devastating effect.

The second stage was the campaign of that referendum itself: a focus on immigration over-riding a wider debate about free trade, and underpinned by the tempting and vague claim that, in an unstable, unfair world, control could be taken back. With any deal dependent on the agreement of twenty eight other countries, it has already proved a hollow victory.

For the last few months, these consequences of these two stages have dominated discussion, generating heat, but not light about what happens next. Neither has anything helped to bring back together those who feel their lives are increasingly at the mercy of a political and economic elite and those who fear Britain is retreating from being a world leader to a back water.

Little wonder the analogy most commonly and easily reached for by commentators has been that of a divorce. They speculate our coming separation from our EU partners is going to be messy, combative and rancorous. Trash talk from some - including those in charge of negotiating -  further feeds this perception. That’s why it is time for all sides to push onto Brexit part three: the practical stage. How and when is it actually going to happen?

A more constructive framework to use than marriage is one of a changing business, rather than a changing relationship. Whatever the solid economic benefits of EU membership, the British people decided the social and democratic costs had become too great. So now we must adapt.

Brexit should be as much about innovating in what we make and create as it is about seeking to renew our trading deals with the world. New products must be sought alongside new markets. This doesn’t have to mean cutting corners or cutting jobs, but it does mean being prepared to learn new skills and invest in helping those in industries that are struggling to make this leap to move on. The UK has an incredible and varied set of services and products to offer the world, but will need to focus on what we do well and uniquely here to thrive. This is easier said than done, but can also offer hope. Specialising and skilling up also means we can resist those who want us to jettison hard-won environmental and social protections as an alternative. 

Most accept such a transition will take time. But what is contested is that it will require openness. However, handing the public a done deal - however well mediated - will do little to address the division within our country. Ensuring the best deal in a way that can garner the public support it needs to work requires strong feedback channels. That is why transparency about the government's plans for Brexit is so important. Of course, a balance needs to be struck with the need to protect negotiating positions, but scrutiny by parliament- and by extension the public- will be vital. With so many differing factors at stake and choices to be made, MPs have to be able and willing to bring their constituents into the discussion not just about what Brexit actually entails, but also what kind of country Britain will be during and after the result - and their role in making it happen. 

Those who want to claim the engagement of parliament and the public undermines the referendum result are still in stages one and two of this debate, looking for someone to blame for past injustices, not building a better future for all. Our Marmite may be safe for the moment, but Brexit can’t remain a love it or hate it phenomenon. It’s time for everyone to get practical.