Disobeying Valid Laws: When Is It Justified

A large crowd gathers to protest lockdown restrictions, at the Shrine of Remembrance in Melbourne, Australia, on Oct. 23, 2020. Darrian Traynor/Getty Images

Commentary

In 1970, the Sydney Morning Herald published an article entitled “How should we react to unjust laws?”

The author, Ilmar Tammelo, argued that defiance of an allegedly “unjust” law leads to “awkward practical consequences” because “on critically important occasions, it may be extremely difficult to ascertain what is just and what is unjust.”

In contrast, other commentators have argued that there is a right to disobey an unjust law. For example, Marcus Tullius Cicero noted in his De Legibus that justice is not identical with obedience to the written laws, and St Augustine of Hippo believed that any “law that is unjust is not seen to be law at all.”

These contradictory views cause us to ask the question: “Is there a right to disobey a valid law?” If so, what requirements have to be met to justify the disobedience of a valid law?

The COVID-19 pandemic, and Australia’s response to it, provide a poignant example of the practical implications of these questions.

During the pandemic, protestors deliberately violated the often-draconian emergency regulations. They regarded the COVID-19 emergency laws as incompatible with paramount rights, including the right to association, the right to freedom of movement, and many others.

They questioned whether Australia could still be described as a liberal democracy because the government introduced vaccine and mask mandates, prevented citizens from entering or leaving their own country, and “deployed the military to enforce those rules, banned protest, and arrested and fined dissenters.”

Police and the Australian military patrol the banks of the Yarra River in Melbourne, Australia, on July 23, 2020. Robert Cianflone/Getty Images

Determined Through Rationality

An act of defiance may be assessed on its “rationality.”

Specifically, an act of defiance could be judged by its effectiveness—its prospect of success. Conversely, an ineffective act of civil disobedience is not likely to be rational because it may not result in social change.

A commitment to rationality also requires that the higher principles, relied upon as a justification for defiance, are balanced against others. This balancing requirement ensures that people do not disobey every law they disagree with and that respect for the rule of law is maintained.

Additionally, the willingness of a lawbreaker to accept the penalty imposed for breaching a valid law proves their loyalty to the legal system. It expresses, at the same time, their disagreement with a specific law.

Finally, the requirement that an act of civil disobedience be rational also assumes that the act is proportionate to the alleged injustice that caused a person to disobey the law.

According to the principle of proportionality, government decisions should be logically and cogently related to their objectives.

During the COVID-19 pandemic, many emergency measures adopted by governments around Australia were unnecessarily authoritarian and, therefore, the protests may well have been a proportionate response.

These requirements would go a long way towards guaranteeing the “rationality” of an act of defiance.

Deeper Social Issues

Civil disobedience becomes a societal problem when the normal channels of social change do not function properly anymore or whenever serious grievances are not heard.

A system does not work adequately when some groups have entrenched power positions in society and use their influence to impose their will on weaker or vulnerable classes of people.

When the opportunities for change, which are provided by the legal system, are deficient, civil disobedience is often an effective and expeditious way to challenge the law.

Police sweep through a park to break up an anti-lockdown protest in the Melbourne suburb of Elsternwick on Sept. 19, 2020. William West/AFP via Getty Images

Civil disobedience, with an avowed intent to challenge a law, should thus be regarded as coming within the realm of political activity in democratic countries.

However, repeated acts of civil disobedience are an indication that something is wrong in society. It is a wrong that can only be rectified with strong medicine that renders a society more responsive to its problems.

For these reasons, I’m afraid I have to disagreee with Ilmar Tammelo’s contentious statement that “any form of political chaos produced by a large-scale defiance of existing law and order is a precarious way to social and political change.”

Civil disobedience has an important role to play in Australian society: in times of practically uncontrolled governmental power, people have a right to civil disobedience.

Martin Luther King, Jr. provided the perfect answer to the question, “How can you advocate breaking some laws and obeying others?”:

The answer lies in the fact that there are two types of laws: just and unjust. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St Augustine that an unjust law is no law at all. Now, what is the difference between the two? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is out of harmony with the moral law. To put it in the terms of St Thomas Aquinas, an unjust law is a human law that is not rooted in eternal and natural law.

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.