Limited Government and Civil Disobedience in the Western Legal Tradition
The idea that laws must protect the basic rights of the individual was first advocated by medieval scholars, then reshaped by the likes of John Locke and Thomas Jefferson, and then invoked in the 1960s in the struggle for civil rights in the United States, although it is true the ruling classes now completely ignore this important tradition of legality.
St Augustine of Hippo was one of the world’s greatest theologians. He believed in the existence of objective standards which make an unjust law “not seen to be law at all”. When the State commands what is wrong, he argued, the basic distinction between a government and a gang of criminals disappears. As the saint himself put it in The City of God:
“Justice being taken away, then, what are kingdoms but great robberies? For what are robberies themselves, but little kingdoms?”
In the thirteenth century, the century of Magna Carta, Henry de Bracton (d.1268), an influential royal judge, defined jurisprudence as “the science of the just and unjust”, and the enforcement of laws as “a just sanction ordering virtue and prohibiting its opposite”. This would lead Bracton to conclude that the king must invariably be under God and the law, because the law makes him king. “For there is no king where will rules rather than the law”, he said. As stated by O. Hood Phillips in his book Constitutional and Administrative Law,
Such superior law governed kings as well as subjects and set limits to the prerogative. On that ground Fortescue, in the middle of the fifteenth century, based his argument that there could be no taxation without the consent of Parliament.
Sir John Fortescue (1394-1476) was a chief justice of the King’s Bench during the reign of Henry VI. He was highly recommended for his wisdom and uprightness. Fortescue believed that freedom was instilled in the human heart by God himself. He goes on to explain how kings have been called by God to govern for the sake of the people, not the other way around. Fortescue remarked:
A law is necessarily adjudged cruel if it increases servitude and diminishes freedom, for which human nature always craves. For servitude was introduced by men for vicious purposes. But freedom was instilled into human nature by God. Hence freedom taken away from men always desires to return, as is always the case when natural liberty is denied. So he who does not favour liberty is to be deemed impious and cruel.
Sir William Blackstone (1723-1780) was another important advocate of inalienable rights and freedoms according to this natural-law perspective. Blackstone’s book Commentaries on the Laws of England (1765-69) arrived with the First Fleet in 1788 and has had a significant impact in Australia on the development of our legal system. It remains a seminal source regarding the classical views of the common law as a legal system. To avoid tyranny, Blackstone writes,
No human laws should be suffered to contradict these natural laws … Nay, if any human law should allow or enjoin us to commit it, we are bound to transgress that human law, or else we must offend both the natural and the divine’.
In 18th-century’s England the leading opponents of slavery based their entire movement on principles of the natural law. William Wilberforce (1759–1833) was only 25 years when he first served in Parliament, in 1780. Over many years he repeatedly introduced an anti-slavery trade bill in the House of Commons, until his private bill was finally passed just two days before he passed away. As sociology professor Alvin J. Schmidt points out, “largely as a result of his indefatigable efforts, slavery came to a complete end in all of the British Empire’s possessions by 1840, making it the first modern country to outlaw slavery”.
The Doctrine of Separation of Powers
History teaches us that power is able to corrupt a ruler’s character and, as Lord Acton added, “absolute power corrupts absolutely”. A government that disperses power is better than one that gathers power into the hands of a few. Accordingly, the separation of powers into independent branches of government – executive, legislative, and judicial – works as a more effective protection against abuse of power. Each branch of government wields specific power and acts as a check and balance against the other branches so that the concentration of power, which is always inimical of freedom, can be prevented.
Charles-Louis de Secondat, Baron de La Brède et de Montesquieu, generally referred to as simply Montesquieu, was a French judge, historian, and political philosopher. He is the principal source of the doctrine of separation of powers which is implemented in many constitutions throughout the world. To restrain the abuse of power, he argued, “it is necessary from the disposition of things that power should be a check to power”. According to Montesquieu, “there is no liberty if the judiciary power be not separate from the legislative and executive”. And as he also cautioned:
When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.
The American Founders based their system of government on Montesquieu’s clear and rigid separation of the legislative, executive and the judicial branches of government; a concept which endures as fundamental to American constitutionalism. They believed in the inherently corruptibility of human nature and societies. As George Washington stated: “A just estimate of that love of power and proneness to abuse it which predominates it the human heart, is sufficient to satisfy us for the truth of this position”. Thus Washington concluded: “the importance of reciprocal checks in the exercise of political power by dividing and distributing it into different depositories … has been evinced”.
The same premise concerning the necessity to separate the powers of the State was explained by Alexander Hamilton in the Federalist Paper No.15: “Why has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice without constraint … [T]he infamy of a bad action is to be divided among a number [rather] than … to fall singly upon one”. Ultimately, the American Founders believed that, because humans are inherently sinful, it is dangerous to concentrate political power. They aimed at designing a model of constitutional framework that more rigidly would separate powers and create a variety of mechanisms whereby each branch of government would check the others.
Justification for Civil Disobedience
To apparently defeat the Covid-19 virus that might be deadly only for those who are very old or seriously ill Australian politicians have acquired extraordinary powers to impose draconian measures that have caused millions of people to endure highly stressful and traumatic situations, including home confinement, job losses, financial ruin, and a whole host of mental illnesses and challenges. These measures are unlawful according to the Western tradition of government under the law as they have profoundly affected the enjoyment of our fundamental freedoms, including freedom of choice, speech, association, movement, expression, and privacy.
The right to disobey unlawful measures that affect the enjoyment of inalienable rights constitute an old Western legal-political tradition. In the 17th century, the celebrated Scottish theologian, Samuel Rutherford (1600-1661), commented in Lex Rex that a political power, whenever it is used to oppress, “is not lawful but a licentious deviation of a lawful power”.
The American Founders had this in mind when they appealed to a “long train of abuses” in order to justify their successful revolutionary actions. Drawing from John Locke’s political writings, their Declaration of Independence starts by manifesting that, “whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government”. This particular statement is taken from Locke’s Second Treatise on Civil Government, the following passage in particular:
Whenever the legislators endeavour to take away and destroy the property of the people [i.e., their basic rights to life, liberty, and property], or to reduce them to slavery under arbitrary power, they put themselves into a state of war with the people, who are thereupon absolved from any further obedience, and are left to the common refuge which God hath provided for all men against force and violence.
One of the Australia’s leading constitutional law scholars is Gabriël Moens AM. He explains that civil disobedience may be justified whenever “the normal channels of social change do not function properly anymore or whenever serious grievances are not heard”. As he points out, “a system does not function adequately anymore when some groups have entrenched power positions in society and use their power to impose their will on weaker or vulnerable classes of people”. Although the right to disobey unjust laws should preferably be non-violent, Professor Moens also reminds us that laws which violate our basic rights and freedoms are themselves “more subtle forms of violence”.
It goes without saying that any recourse to civil disobedience should be balanced against the principle of regular obedience to validly enacted laws. As a strong medicine to render the ruling classes more responsive to reasonable popular grievances, reliance on civil disobedience requires a long sequence of abuses and it should be followed by popular mobilisation coupled with widespread community support.
This view of our lawful right to resist unjust oppressive commands of the State was particularly relevant during the civil rights movement in the United States, in the 1960s. Leading the fight against segregation was the legendary Baptist minister, Dr Martin Luther King Jr (1929–1968).
When Dr King made a decision to peacefully march on Good Friday, in 1963, a federal magistrate issued a writ on behalf of Birmingham City authorities prohibiting it. Dr King refused to comply with the writ and he was arrested as a result. Because he had asked citizens to respect judicial decisions that outlawed racial segregation, “at first glance”, he wrote in his solitary confinement and on stripes of a toilet paper: “It may seem quite paradoxical for me consciously to break laws. One could ask how I can advocate breaking some laws and obeying others”, to which Dr King replied:
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.
In his struggle against segregation, Dr King made an important distinction between the formally legal and the objectively moral. This allowed him to conclude that an unjust law can be “on the books”, so to speak, but since it violates the basic rights of a segment of the population, this law ought to be disobeyed because it “does not square with the law of God, so for reason it is unjust and any law that degrades the human personality is an unjust law.” Indeed, a significant element of Dr King’s strategy to further the civil rights movement was to challenge unjust laws by measuring these laws in accordance with traditional principles of legality. In this line of reasoning, to disobey an unjust law is to actually demonstrate an utmost respect for the rule of law. Dr King explained:
The individual who disobeys the law whose conscience tells him it is unjust, and who is willing to accept the penalty by staying in jail until that law is altered, is expressing at the moment the very highest respect for the law.
Under our constitutional tradition the political ruler is elected by the people to represent them. Since we have elected our political representatives, then we, the people, have not only the legal right but the moral duty to oversee the political class in accordance with the Australian Constitution. Should the elected political ruler violate some of basic elements leading to the realisation of the rule of law, for example, by attempting to remove fundamental legal rights and freedoms of the citizen, then it is not just that we have a lawful right to resist; it is also our moral responsibility to do so, not out of self-love but out of love for our neighbour.
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Dr Augusto Zimmermann PhD, LLM, LLB, DipEd, CertIntArb is a well-known expert in Brazilian law, and the author of numerous books and articles on Brazilian Constitutional Law, including Direito Constitucional Brasileiro – Tomes I & II (Rio de Janeiro/RJ: Lumen Juris, 2014), and Curso de Direito Constitucional (4th ed., Rio de Janeiro: Lumen Juris, 2006). He is also co-author of the book Deconstructing Scomo. He is Professor and Head of Law at Sheridan Institute of Higher Education in Perth, WA, and Professor of Law (Adjunct) at the University of Notre Dame Australia, Sydney campus. He is President of the Western Australian Legal Theory Association (WALTA), and former Law Reform Commissioner with the Law Reform Commission of Western Australia, from 2012-2017. Dr Zimmermann was chair and professor of Constitutional Law at Murdoch University from 2007 to 2017.
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- Morgan Begg and Kristen Pereira, ‘Legal Rights Audit 2019’, Institute of Public Affairs, Melbourne/Vic, February 2020, p 1.
- Nicola Berkovic, ‘Coalition Worse than ALP on Human Rights’, The Australian, 6 February 2020.
- Olivia Caisley, ‘South Africa violence: Julie Bishop refuses to back Peter Dutton‘, The Australian, 18 March 2018.
- ‘Coalition urged to give persecuted Pakistani woman asylum in Australia‘, Sky News, 18 November 2018.
- Martyn Iles, ‘Australia to offer Asia Bibi asylum‘, ACL.org.au, 24 November 2018
- Genesis 9:6; Romans 13:1–7
- Richard Furgason, ‘Future Vaccine Should Be Mandatory, Says PM’, The Australian, 19 August 2020.
- Jade Gailberger, ‘Coronavirus Vaccine Should Be Mandatory: PM’, PerthNow, 19 August 2020.
- W A Wynes, Legislative, Executive and Judicial Powers in Australia (Sydney: The Law Book Co, 1955), vii.
- For instance, whereas Section 51 (xxiiiA) of the Australian Constitution allows for the granting of various services by the federal government, this should not be to the extent of authorising any form of civil conscription. This means that no government in this country, or those acting on its behalf, is constitutionally authorised to make the Australian people take any medicament against their best will, or force children to be vaccinated in order to maintain benefit payments.