Civil Disobedience Research Paper
The ‘Right’ of Civil Disobedience
I. Introduction
Civil disobedience refers to a politically motivated breach of law designed either to contribute directly to a change of a law or of a public policy, or to express one’s protest against, and dissociation from, a law or public policy. Examples include the American Civil Rights Movement, and the fight against South African apartheid.
There has been much academic discussion regarding the ‘right’ of civil disobedience and its justifications. Part II examines whether a ‘right’ of civil disobedience towards manifestly unjust laws exists. A moral right exists for the legal positivist, while the idea of “civil disobedience” is irrelevant to the natural law theorist. Part III compares the …show more content…
approaches towards civil disobedience of an unjust law, and concludes that the natural law theory position is preferable.
II. Is there a justifiable ‘right’ of civil disobedience?
No legal system is perfect, and unjust laws that do not reach an intolerable degree remain valid law and ought to be obeyed. According to Finnis, “the whole system cannot be thrown into disharmony, by leaving the citizen to judge whether each individual law is unjust”. Fuller similarly cautioned that “justice itself is impossible without order, and that we must not lose order itself in the attempt to make it good”. Hence, the scope of our discussion will be limited to cases of manifestly unjust laws. A. The legal positivist approach
Legal positivism states that there is no necessary connection between law and morality. According to Hart, law is a system of rules that is valid by the rule of recognition, hence the slogan “law is law”.
1) Moral right of civil disobedience
Fuller describes the moral dilemma between the “moral duty to obey [law]” and the “moral duty to do what we think us right”. When “confronted by a statute [which is] thoroughly evil, we have to choose between those two duties”.
Without delving into a discussion on the “moral duty to obey law”, it is generally accepted that citizens have moral right to disobey unjust laws. Martin Luther King Jr. concluded that the ‘moral pull’ of one’s conscience negates the obligation to be bound to an unjust valid law. Similarly, the fathers of legal positivism, Austin and Bentham, acknowledged that “if laws reached a certain degree of iniquity then there would be a plain moral obligation to resist them and withhold obedience”.
Most writers recognize the societal value of civil disobedience in helping to correct departures from justice, and are instead concerned with setting formal limits on permissible forms of it. Rawls, for example, says that civil disobedience is justified when three conditions are met.
This moral right does not excuse the disobedient from punishment. It seems inconsistent, however, to acknowledge that one has a ‘right’ to civil disobedience, yet punish him for exercising this right. This confusion results from the word ‘right’ being used in the loose sense. Dworkin and Raz clarify the true nature of a right and what it entails. There is a “clear difference in saying that someone has a right to do something… and saying that it is the ‘right’ thing for him to do”. Saying that someone has a right to do something implies that it would be wrong to interfere with his doing it, or “special grounds are needed for justifying any interference”. A moral right to civil disobedience is not strictly a right, thus the disobedient is bound to be punished.
2) Legal right?
Raz says that the right of civil disobedience is justified only in illiberal societies, as equivalent to the “right to political participation”. Dworkin speaks of a right of civil disobedience whenever the law wrongly invades one’s rights against the government. This is “not a separate right… [but] simply a feature of these rights against the government and it cannot be denied in principle without denying that any such rights exist”.
Other writers attempt to create a seemingly legal right to civil disobedience, such as a special civil disobedience defence, analogous to a defence of necessity. This legal defence would permit civil disobedience within certain limits, exempting the ‘disobedient’ from punishment.
It is indeed tempting to justify a legal right to civil disobedience.
However, conventional wisdom immediately indicates that attempting to address the right of civil disobedience within legal positivism presents a paradox – an impossibility of “legal illegality”. Unless these “legal rights” satisfy the rules of recognition of the society, they are not conferred the status of law, and remain moral rights at best. If they do satisfy the rules of recognition, then one who acts within the limits of the “legal right” has acted lawfully and committed no civil disobedience to speak of. Therefore, there can be no legal right to civil disobedience in legal …show more content…
positivism.
B. The natural law theorist approach
Natural law theory holds that there is a necessary connection between law and morality, hence the slogan lex iniusta non est lex. Manifest injustice disqualifies otherwise valid state laws from counting as law.
To a natural law theorist, “civil disobedience” does not exist in the context of manifestly unjust laws. Since the unjust law is not a law, there has been no “disobedience”. Hence, no justification for a right of civil disobedience is needed.
III. Weighing different approaches towards manifestly unjust laws
The three approaches towards unjust laws are:
i. the legal positivist position that the civil disobedient breached the law and ought to be punished; ii. the natural law theorist position that the unjust law was not law, and he ought not to be punished; or iii. the alternative legal positivist position that pursuant to an introduction of a retroactive law, he ought not to be punished.
A. The unpalatable result of the first approach
There is fear that leaving disobedience unpunished sets a bad example and inclines others to disobey laws. Legal uncertainty may guide citizens to obey laws they approve of, which will result in anarchy, possibly leading to disorder. Civil disobedients must therefore be punished because society cannot tolerate the decline in respect for the law that their act constitutes and encourages.
This concern is misplaced. Non-punishment only applies to cases where injustice is extreme. It is sufficiently limited such that the spectacle of anarchy is unreal. Furthermore, the value of legal certainty must be weighed against the value of material justice. Respect for all laws is a somewhat complacent attitude to the law. The law requires some claim to respect; manifestly unjust laws deserve no respect and should be broken. This can help make a legal system more just and stable.
Hart himself recognized the rigidity of legal positivism, when he said that not punishing the German wife, who acted in accordance with the manifestly unjust law, might have been “a bad thing”. Similarly, one can hardly respect a court, when it treats one who bravely stood up against manifest injustice, like a common burglar.
B. Revisiting the debate: “law is law” versus “lex iniusta non est lex”
The remaining two approaches provide the more palatable result of leaving the morally commendable “civil disobedient” unpunished. It is submitted that the natural law position is preferred. Reasons for and against it will be analysed here.
1) Tackling arguments against the natural law theory approach
a) Including morality in the concept of law leads to an “inexpedient specification of language”
Alexy refutes this, reasoning that the judge must characterize his decision as ‘law’ since he is deciding on the basis of legal reasons. The “issues at stake are much too serious to risk losing them in a semantic tangle”. Indeed, what we are concerned with is whether the unjust law is to have the force of law.
b) Clarity
Hart says legal positivists “speak plainly[,] laws may be law but too evil to be obeyed… everyone can understand and it makes an immediate and obvious claim to moral attention.”
However, “simplicity must not prevail at the expense of adequacy”.
The issue here is the possible problem in distinguishing injustice from manifest injustice – but this is question of legal certainty. Natural law’s substantive thesis is that in the case of extreme injustice, the problem of morality is also a problem of legality. It cannot be attacked merely with a formal argument charging lack of clarity.
c) Natural law theory leads to an “uncritical legitimization of the state coercive system”.
An insistence on a necessary connection between law and morality gives the false impression that all laws are moral and indisputable. Hart observed that positivism removes any automatic moral stamp from the law, encouraging a critical stance vis-à-vis the law. However, unjust laws are not law only when they meet the high threshold of intolerable injustice, so positive law takes precedence even when its content is unjust but not manifestly so. Natural law theory thus encourages a critical stance as much as legal positivism does. Furthermore, necessitating that law must meet minimum moral requirements allows legal argumentation that facilitates challenges against unjust laws. The risk of future sanctions also gives judges more incentive to ensure just
decisions.
d) Retroactive laws have “the merits of candour”.
Despite the discomfort with retroactive laws, pursuing one openly would make plain that not punishing the civil disobedient is a choice made between the two evils, of punishing him, or sacrificing a very precious principle of morality endorsed by most legal systems.
However, extreme injustice would be recognizable by its incompatibility with the concept of law. There “cannot be any question of a covert retroactivity and therefore not of a lack of candour either”.
2) Problems with introducing retroactive laws
Since retroactive statutes would only be enacted in the extreme cases of injustice, Fuller’s concern that there would be “deterioration in that form of legal morality without which law itself cannot exist… [and its] threat robs every law on the books of some of its significance”, may be unfounded.
A more significant practical problem with leaving the legislature to correct injustice by enacting retroactive laws, is, what if the legislature is unwilling to act, or has not acted yet at the time of the disobedient’s trial? The disobedient ought not to suffer a “disadvantageous decision…itself representing, injustice in the extreme, simply to prompt the legislator to act”. The natural law concept of law may be necessary for protecting the disobedient, from punishment for doing the right thing.
The concern regarding the separation of powers is unfounded. Judicial adherence to law, freed from the tethers of prevailing morality “lacks a powerful internal check against injustice”. “Law is law” enslaved the Nazi judiciary such that they enforced monstrous rules and reached death sentences for violations as trivial as a Jew's hoarding of eggs. Given that we are dealing with manifestly unjust laws, the judges would merely be conducting something akin to “judicial review…of the legislator’s commitment to fundamental rights.
Given the practical limitations of retroactive laws, and the crucial role of the courts in acting as a check-and-balance, the natural law approach towards unjust laws is desirable.
IV. Conclusion
This paper has sought to uncover the mystery behind the ‘right’ of civil disobedience that many have written about. For the legal positivist, only a moral right exists for the disobedient. One who disobeys the unjust law and seeks to achieve positive change still faces punishment. For the natural law theorist, the ‘right’ of civil disobedience is irrelevant since the unjust law is not law.
Legal positivism also put forth an alternative of introducing a retroactive law to correct the injustice. In supporting the natural law approach, arguments against it were addressed. The analysis additionally showed that there may be practical limitations to the solution of retroactive laws.
Law is a means to an end, and not an end in itself. We must not become myopically fixated upon man-made rules, and forget that the end of law is justice. One who disobeys a manifestly unjust law has done nothing unlawful, for a law so abhorrent can never be said to have had the force of law at all.
--------------------------------------------
[ 1 ]. J. Raz, The Authority of Law: Essays on Law and Morality (Oxford University Press: 1979) at 263.
[ 2 ]. J. Finnis, Natural Law and Natural Rights (Oxford University Press: 1981) at 361.
[ 3 ]. L. Fuller, “Positivism and Fidelity to Law — A Reply to Professor Hart” (1958) 71 Harvard Law Review 644 at 657.
[ 4 ]. See H.L.A Hart, The Concept of Law (Oxford University Press: 1961).
[ 5 ]. Supra, n.3 at 656.
[ 6 ]. See M.B.E Smith, “Is there a Prima Facie Obligation to Obey the Law?” (1973) 82 Yale Law Journal 950 for a good case showing that there is no obligation to obey the law.
[ 7 ]. R. Dworkin, Taking Rights Seriously, (Harvard University Press: 1977) at 184.
[ 8 ]. M.L King Jr., “Letter from Birmingham Jail” (1991) in H. A. Bedau, Civil Disobedience in Focus (Routledge: 1991) at 68.
[ 9 ]. H.L.A Hart, “Positivism and the Separation of Law and Morals” (1958) 71 Harvard Law Review 593 at 617. (1958).
[ 10 ]. Supra, n.1 at 267.
[ 11 ]. J. Rawls, A Theory of Justice (Oxford University Press: 1999) at 326-330. The three conditions are: (i) the injustice is substantial and clear; (ii) it is used as a last resort; and (iii) there has been cooperation with the other minority groups.
[ 12 ]. D. M. Farrell, “Paying the Penalty: Justifiable Civil Disobedience and the Problem of Punishment” (1977) 6 Philosophy and Public Affairs 165 at 166. Some writers also view submission to punishment as a condition for morally justifiable civil disobedience.
[ 13 ]. Supra, n.7 at 188.
[ 14 ]. Ibid, and supra, n.1 at 266.
[ 15 ]. Supra, n.7 at 188.
[ 16 ]. Supra, n.1 at 273.
[ 17 ]. Supra, n.7 at 192.
[ 18 ]. Supra, n.12 at 174; R. T. Hall, “Legal Toleration of Civil Disobedience” (1971) 81 Ethics 128 at 139; M. R. Hall, “Guilty but Civilly Disobedient: Reconciling Civil Disobedience and the Rule of Law” (2007) 28 Cardozo Law Review 2083.
[ 19 ]. M. R. Hall, “Guilty but Civilly Disobedient: Reconciling Civil Disobedience and the Rule of Law” (2007) 28 Cardozo Law Review 2083 at 2083.
[ 20 ]. An unjust law is not law.
[ 21 ]. Supra, n.1 at 237.
[ 22 ]. Supra, n.7 at 195.
[ 23 ]. Supra, n.7 at 187.
[ 24 ]. P. Soper, “In Defense of Classical Natural Law in Legal Theory: Why Unjust Law is No Law at All” (2007) 20 Can. J. L. & Jurisprudence 201 at 213.
[ 25 ]. R. Alexy, The Argument from Injustice: A Reply to Legal Positivism, (Oxford University Press: 2002) at 51.
[ 26 ]. Supra, n.7 at 204-205.
[ 27 ]. Supra, n.11 at 336.
[ 28 ]. Supra, n.9 at 617.
[ 29 ]. Supra, n.25 at 41.
[ 30 ]. Ibid, at 42.
[ 31 ]. Supra, n.3 at 649.
[ 32 ]. Supra, n.25 at 43.
[ 33 ]. Supra, n.9 at 621.
[ 34 ]. Supra, n.25 at 43.
[ 35 ]. The issue of legal certainty was addressed in Part (II)(A): The unpalatable result of the first approach.
[ 36 ]. Ibid.
[ 37 ]. Supra, n.25 at 46.
[ 38 ]. B.Z Tamanaha, “The Contemporary Relevance of Legal Positivism” (2007) 32 Austl. J. Leg. Phil. 1 at
[ 39 ]. Supra, n.4 at 205-206. Hart: “Wicked men will enact wicked rules which others will enforce. What is surely most needed in order to make men clear sighted in confronting the official abuse of power, is that they should preserve the sense that the certification of something as legally valid is not conclusive of the question of obedience.”
[ 40 ]. Supra, n.25 at 47-48.
[ 41 ]. Ibid.
[ 42 ]. Ibid.
[ 43 ]. Supra, n.25 at 47-48.
[ 44 ]. Fuller says “we have only to imagine a country in which all laws are retroactive in order to see that retroactivity presents a real problem for the internal morality of law”. Supra, n.3 at 651.
[ 45 ]. Supra, n.25 at 61.
[ 46 ]. Supra, n.3 at 651.
[ 47 ]. Supra, n.25 at 58.
[ 48 ]. Ibid.
[ 49 ]. J. C. Oleson, “The Antigone Dilemma: When the Paths of Law and Morality Diverge” (2007) 29 Cardozo L. Rev. 669 at 670.
[ 50 ]. Ibid, at 673.
[ 51 ]. Supra, n.25 at 56.
I. Introduction
Civil disobedience refers to a politically motivated breach of law designed either to contribute directly to a change of a law or of a public policy, or to express one’s protest against, and dissociation from, a law or public policy. Examples include the American Civil Rights Movement, and the fight against South African apartheid.
There has been much academic discussion regarding the ‘right’ of civil disobedience and its justifications. Part II examines whether a ‘right’ of civil disobedience towards manifestly unjust laws exists. A moral right exists for the legal positivist, while the idea of “civil disobedience” is irrelevant to the natural law theorist. Part III compares the …show more content…
approaches towards civil disobedience of an unjust law, and concludes that the natural law theory position is preferable.
II. Is there a justifiable ‘right’ of civil disobedience?
No legal system is perfect, and unjust laws that do not reach an intolerable degree remain valid law and ought to be obeyed. According to Finnis, “the whole system cannot be thrown into disharmony, by leaving the citizen to judge whether each individual law is unjust”. Fuller similarly cautioned that “justice itself is impossible without order, and that we must not lose order itself in the attempt to make it good”. Hence, the scope of our discussion will be limited to cases of manifestly unjust laws. A. The legal positivist approach
Legal positivism states that there is no necessary connection between law and morality. According to Hart, law is a system of rules that is valid by the rule of recognition, hence the slogan “law is law”.
1) Moral right of civil disobedience
Fuller describes the moral dilemma between the “moral duty to obey [law]” and the “moral duty to do what we think us right”. When “confronted by a statute [which is] thoroughly evil, we have to choose between those two duties”.
Without delving into a discussion on the “moral duty to obey law”, it is generally accepted that citizens have moral right to disobey unjust laws. Martin Luther King Jr. concluded that the ‘moral pull’ of one’s conscience negates the obligation to be bound to an unjust valid law. Similarly, the fathers of legal positivism, Austin and Bentham, acknowledged that “if laws reached a certain degree of iniquity then there would be a plain moral obligation to resist them and withhold obedience”.
Most writers recognize the societal value of civil disobedience in helping to correct departures from justice, and are instead concerned with setting formal limits on permissible forms of it. Rawls, for example, says that civil disobedience is justified when three conditions are met.
This moral right does not excuse the disobedient from punishment. It seems inconsistent, however, to acknowledge that one has a ‘right’ to civil disobedience, yet punish him for exercising this right. This confusion results from the word ‘right’ being used in the loose sense. Dworkin and Raz clarify the true nature of a right and what it entails. There is a “clear difference in saying that someone has a right to do something… and saying that it is the ‘right’ thing for him to do”. Saying that someone has a right to do something implies that it would be wrong to interfere with his doing it, or “special grounds are needed for justifying any interference”. A moral right to civil disobedience is not strictly a right, thus the disobedient is bound to be punished.
2) Legal right?
Raz says that the right of civil disobedience is justified only in illiberal societies, as equivalent to the “right to political participation”. Dworkin speaks of a right of civil disobedience whenever the law wrongly invades one’s rights against the government. This is “not a separate right… [but] simply a feature of these rights against the government and it cannot be denied in principle without denying that any such rights exist”.
Other writers attempt to create a seemingly legal right to civil disobedience, such as a special civil disobedience defence, analogous to a defence of necessity. This legal defence would permit civil disobedience within certain limits, exempting the ‘disobedient’ from punishment.
It is indeed tempting to justify a legal right to civil disobedience.
However, conventional wisdom immediately indicates that attempting to address the right of civil disobedience within legal positivism presents a paradox – an impossibility of “legal illegality”. Unless these “legal rights” satisfy the rules of recognition of the society, they are not conferred the status of law, and remain moral rights at best. If they do satisfy the rules of recognition, then one who acts within the limits of the “legal right” has acted lawfully and committed no civil disobedience to speak of. Therefore, there can be no legal right to civil disobedience in legal …show more content…
positivism.
B. The natural law theorist approach
Natural law theory holds that there is a necessary connection between law and morality, hence the slogan lex iniusta non est lex. Manifest injustice disqualifies otherwise valid state laws from counting as law.
To a natural law theorist, “civil disobedience” does not exist in the context of manifestly unjust laws. Since the unjust law is not a law, there has been no “disobedience”. Hence, no justification for a right of civil disobedience is needed.
III. Weighing different approaches towards manifestly unjust laws
The three approaches towards unjust laws are:
i. the legal positivist position that the civil disobedient breached the law and ought to be punished; ii. the natural law theorist position that the unjust law was not law, and he ought not to be punished; or iii. the alternative legal positivist position that pursuant to an introduction of a retroactive law, he ought not to be punished.
A. The unpalatable result of the first approach
There is fear that leaving disobedience unpunished sets a bad example and inclines others to disobey laws. Legal uncertainty may guide citizens to obey laws they approve of, which will result in anarchy, possibly leading to disorder. Civil disobedients must therefore be punished because society cannot tolerate the decline in respect for the law that their act constitutes and encourages.
This concern is misplaced. Non-punishment only applies to cases where injustice is extreme. It is sufficiently limited such that the spectacle of anarchy is unreal. Furthermore, the value of legal certainty must be weighed against the value of material justice. Respect for all laws is a somewhat complacent attitude to the law. The law requires some claim to respect; manifestly unjust laws deserve no respect and should be broken. This can help make a legal system more just and stable.
Hart himself recognized the rigidity of legal positivism, when he said that not punishing the German wife, who acted in accordance with the manifestly unjust law, might have been “a bad thing”. Similarly, one can hardly respect a court, when it treats one who bravely stood up against manifest injustice, like a common burglar.
B. Revisiting the debate: “law is law” versus “lex iniusta non est lex”
The remaining two approaches provide the more palatable result of leaving the morally commendable “civil disobedient” unpunished. It is submitted that the natural law position is preferred. Reasons for and against it will be analysed here.
1) Tackling arguments against the natural law theory approach
a) Including morality in the concept of law leads to an “inexpedient specification of language”
Alexy refutes this, reasoning that the judge must characterize his decision as ‘law’ since he is deciding on the basis of legal reasons. The “issues at stake are much too serious to risk losing them in a semantic tangle”. Indeed, what we are concerned with is whether the unjust law is to have the force of law.
b) Clarity
Hart says legal positivists “speak plainly[,] laws may be law but too evil to be obeyed… everyone can understand and it makes an immediate and obvious claim to moral attention.”
However, “simplicity must not prevail at the expense of adequacy”.
The issue here is the possible problem in distinguishing injustice from manifest injustice – but this is question of legal certainty. Natural law’s substantive thesis is that in the case of extreme injustice, the problem of morality is also a problem of legality. It cannot be attacked merely with a formal argument charging lack of clarity.
c) Natural law theory leads to an “uncritical legitimization of the state coercive system”.
An insistence on a necessary connection between law and morality gives the false impression that all laws are moral and indisputable. Hart observed that positivism removes any automatic moral stamp from the law, encouraging a critical stance vis-à-vis the law. However, unjust laws are not law only when they meet the high threshold of intolerable injustice, so positive law takes precedence even when its content is unjust but not manifestly so. Natural law theory thus encourages a critical stance as much as legal positivism does. Furthermore, necessitating that law must meet minimum moral requirements allows legal argumentation that facilitates challenges against unjust laws. The risk of future sanctions also gives judges more incentive to ensure just
decisions.
d) Retroactive laws have “the merits of candour”.
Despite the discomfort with retroactive laws, pursuing one openly would make plain that not punishing the civil disobedient is a choice made between the two evils, of punishing him, or sacrificing a very precious principle of morality endorsed by most legal systems.
However, extreme injustice would be recognizable by its incompatibility with the concept of law. There “cannot be any question of a covert retroactivity and therefore not of a lack of candour either”.
2) Problems with introducing retroactive laws
Since retroactive statutes would only be enacted in the extreme cases of injustice, Fuller’s concern that there would be “deterioration in that form of legal morality without which law itself cannot exist… [and its] threat robs every law on the books of some of its significance”, may be unfounded.
A more significant practical problem with leaving the legislature to correct injustice by enacting retroactive laws, is, what if the legislature is unwilling to act, or has not acted yet at the time of the disobedient’s trial? The disobedient ought not to suffer a “disadvantageous decision…itself representing, injustice in the extreme, simply to prompt the legislator to act”. The natural law concept of law may be necessary for protecting the disobedient, from punishment for doing the right thing.
The concern regarding the separation of powers is unfounded. Judicial adherence to law, freed from the tethers of prevailing morality “lacks a powerful internal check against injustice”. “Law is law” enslaved the Nazi judiciary such that they enforced monstrous rules and reached death sentences for violations as trivial as a Jew's hoarding of eggs. Given that we are dealing with manifestly unjust laws, the judges would merely be conducting something akin to “judicial review…of the legislator’s commitment to fundamental rights.
Given the practical limitations of retroactive laws, and the crucial role of the courts in acting as a check-and-balance, the natural law approach towards unjust laws is desirable.
IV. Conclusion
This paper has sought to uncover the mystery behind the ‘right’ of civil disobedience that many have written about. For the legal positivist, only a moral right exists for the disobedient. One who disobeys the unjust law and seeks to achieve positive change still faces punishment. For the natural law theorist, the ‘right’ of civil disobedience is irrelevant since the unjust law is not law.
Legal positivism also put forth an alternative of introducing a retroactive law to correct the injustice. In supporting the natural law approach, arguments against it were addressed. The analysis additionally showed that there may be practical limitations to the solution of retroactive laws.
Law is a means to an end, and not an end in itself. We must not become myopically fixated upon man-made rules, and forget that the end of law is justice. One who disobeys a manifestly unjust law has done nothing unlawful, for a law so abhorrent can never be said to have had the force of law at all.
--------------------------------------------
[ 1 ]. J. Raz, The Authority of Law: Essays on Law and Morality (Oxford University Press: 1979) at 263.
[ 2 ]. J. Finnis, Natural Law and Natural Rights (Oxford University Press: 1981) at 361.
[ 3 ]. L. Fuller, “Positivism and Fidelity to Law — A Reply to Professor Hart” (1958) 71 Harvard Law Review 644 at 657.
[ 4 ]. See H.L.A Hart, The Concept of Law (Oxford University Press: 1961).
[ 5 ]. Supra, n.3 at 656.
[ 6 ]. See M.B.E Smith, “Is there a Prima Facie Obligation to Obey the Law?” (1973) 82 Yale Law Journal 950 for a good case showing that there is no obligation to obey the law.
[ 7 ]. R. Dworkin, Taking Rights Seriously, (Harvard University Press: 1977) at 184.
[ 8 ]. M.L King Jr., “Letter from Birmingham Jail” (1991) in H. A. Bedau, Civil Disobedience in Focus (Routledge: 1991) at 68.
[ 9 ]. H.L.A Hart, “Positivism and the Separation of Law and Morals” (1958) 71 Harvard Law Review 593 at 617. (1958).
[ 10 ]. Supra, n.1 at 267.
[ 11 ]. J. Rawls, A Theory of Justice (Oxford University Press: 1999) at 326-330. The three conditions are: (i) the injustice is substantial and clear; (ii) it is used as a last resort; and (iii) there has been cooperation with the other minority groups.
[ 12 ]. D. M. Farrell, “Paying the Penalty: Justifiable Civil Disobedience and the Problem of Punishment” (1977) 6 Philosophy and Public Affairs 165 at 166. Some writers also view submission to punishment as a condition for morally justifiable civil disobedience.
[ 13 ]. Supra, n.7 at 188.
[ 14 ]. Ibid, and supra, n.1 at 266.
[ 15 ]. Supra, n.7 at 188.
[ 16 ]. Supra, n.1 at 273.
[ 17 ]. Supra, n.7 at 192.
[ 18 ]. Supra, n.12 at 174; R. T. Hall, “Legal Toleration of Civil Disobedience” (1971) 81 Ethics 128 at 139; M. R. Hall, “Guilty but Civilly Disobedient: Reconciling Civil Disobedience and the Rule of Law” (2007) 28 Cardozo Law Review 2083.
[ 19 ]. M. R. Hall, “Guilty but Civilly Disobedient: Reconciling Civil Disobedience and the Rule of Law” (2007) 28 Cardozo Law Review 2083 at 2083.
[ 20 ]. An unjust law is not law.
[ 21 ]. Supra, n.1 at 237.
[ 22 ]. Supra, n.7 at 195.
[ 23 ]. Supra, n.7 at 187.
[ 24 ]. P. Soper, “In Defense of Classical Natural Law in Legal Theory: Why Unjust Law is No Law at All” (2007) 20 Can. J. L. & Jurisprudence 201 at 213.
[ 25 ]. R. Alexy, The Argument from Injustice: A Reply to Legal Positivism, (Oxford University Press: 2002) at 51.
[ 26 ]. Supra, n.7 at 204-205.
[ 27 ]. Supra, n.11 at 336.
[ 28 ]. Supra, n.9 at 617.
[ 29 ]. Supra, n.25 at 41.
[ 30 ]. Ibid, at 42.
[ 31 ]. Supra, n.3 at 649.
[ 32 ]. Supra, n.25 at 43.
[ 33 ]. Supra, n.9 at 621.
[ 34 ]. Supra, n.25 at 43.
[ 35 ]. The issue of legal certainty was addressed in Part (II)(A): The unpalatable result of the first approach.
[ 36 ]. Ibid.
[ 37 ]. Supra, n.25 at 46.
[ 38 ]. B.Z Tamanaha, “The Contemporary Relevance of Legal Positivism” (2007) 32 Austl. J. Leg. Phil. 1 at
[ 39 ]. Supra, n.4 at 205-206. Hart: “Wicked men will enact wicked rules which others will enforce. What is surely most needed in order to make men clear sighted in confronting the official abuse of power, is that they should preserve the sense that the certification of something as legally valid is not conclusive of the question of obedience.”
[ 40 ]. Supra, n.25 at 47-48.
[ 41 ]. Ibid.
[ 42 ]. Ibid.
[ 43 ]. Supra, n.25 at 47-48.
[ 44 ]. Fuller says “we have only to imagine a country in which all laws are retroactive in order to see that retroactivity presents a real problem for the internal morality of law”. Supra, n.3 at 651.
[ 45 ]. Supra, n.25 at 61.
[ 46 ]. Supra, n.3 at 651.
[ 47 ]. Supra, n.25 at 58.
[ 48 ]. Ibid.
[ 49 ]. J. C. Oleson, “The Antigone Dilemma: When the Paths of Law and Morality Diverge” (2007) 29 Cardozo L. Rev. 669 at 670.
[ 50 ]. Ibid, at 673.
[ 51 ]. Supra, n.25 at 56.