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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Labour will win the London elections – they’ve just lost the spin war

The question is, does that matter? 

Cancel the champagne in Jeremy Corbyn’s office? A new YouGov poll for Queen Mary’s Mile End Institute shows Labour slipping back from the record-breaking heights of 53 per cent in the local elections in London… to the still record-breaking heights of 51 per cent.

There are two things to note first off: the first, of course, is that Labour would still be posting the best result of any party in the capital since 1971, and its best since these boroughs were founded. The second is that as the change is within the margin of error, it could all be noise.

My sense, from talking to the local parties throughout the capital is that there has been a slight fall in Labour support but it is not evenly spread. In Barnet, the party’s ongoing difficulties with antisemitism have turned what looked a certain victory into a knife-edge fight. In Wandsworth, stories in the Standard about the local Momentum group have successfully spooked some residents into fearing that a Labour victory in that borough would imperil the borough’s long history of ultra-low council tax, while the presence of a fairly well-organised campaign from new party Renew is splitting angry pro-Remain vote. But elsewhere, neither Labour nor Tory local activists are reporting any kind of fall.

However, it does show how comprehensively Labour have lost the spin war as far as what a “good” set of local election results would be next week: as I laid out in my analyses of what a good night for the major parties would be, Wandsworth and Westminster councils, both of which would stay blue if this poll is borne out, should not be seen as essential gains for Labour and should properly be seen as disastrous defeats for the Conservatives.

However, CCHQ have done a good job setting out a benchmark for what a good night looks like to the point where holding onto Bexley is probably going to be hailed as a success. Labour haven’t really entered the spin wars. As I noted on our podcast this week, that’s in part because, as one senior member of Team Corbyn noted, there is a belief that whatever you do in the run-up, the BBC will decide that there is merit in both sides’ presentation of how the night has gone, so why bother with the spin war beforehand? We may be about to find out whether that’s true. The bigger question for Labour is if the inability to shape the narrative in the face of a largely hostile press will be a problem come 2022. 

Stephen Bush is special correspondent at the New Statesman and the PSA's Journalist of the Year. His daily briefing, Morning Call, provides a quick and essential guide to domestic and global politics.