Democracy And Civil Disobedience Law Constitutional Administrative Essay

It is noteworthy that civil disobedience, though an unlawful act, is different from a revolution and conscientious refusal. Firstly, civil disobedience does not seek to overthrow the government but to express their discontentment and resentment towards certain law or situation in an unlawful manner. Secondly, in conscientious refusal, individual demands exemption from a legal obligation considered repugnant to its conscience; and he or she do not need others to follow likewise. So, conscientious refusal is an act of an individual that does not address the majority idea of justice. Therefore, the conception of "political act" of civil disobedience underscores the differences between the three. As a "political act", the justification of civil disobedience is always questioned; I want to show that the functions of civil disobedience of the democracy society in the context of democracy, rule of law, and judicial system can sometime morally justified the act of civil disobedience. The moral justification of civil disobedience should be base more on the intentions and motivations rather than only the act itself.

Democracy and civil disobedience

The term "democracy" originated from Greek, which means "rule of people" or "people power". Democracy in ancient Greek was a direct but restricted democracy. Citizens would participate in decision making personally, but only certain group of citizens (free men) were allowed, that excludes women and slaves. To a certain extent, democracy than did not execute the intentions or connotations of "democracy", it’s more of a rudiment of the system. Transiting into the modern era, there are more stipulations or provisions added to the idea of democracy. Democracy are shaped into different forms nowadays, there are direct, representative, constitutional, presidential, parliament etc. The fundamental contents of modern democracy constitute of rights to life, fair trials, vote, freedom to speech, thought, religion and equality of people etc, no matter which forms of democracy is selected in the democratic country. There are lots of complications in the constitutional of democracy, but most importantly, democracy ensures equality of people, regardless of race, gender, status. Democracy ensures equality of people, and the basic rights of all citizens, but it did not always ensure the justice of the outcome of decision making, as democracy accepts "majority rule" as the method of deciding.

Democracy is the essential attribute of the modern state, and civil disobedience, though legally unjustified, help to shapes democracy. Firstly, civil disobedience prevents the democracy from turning into absolute democracy, where the majority will make all the decisions and left the minority’s will unheard. This would further prevent future conflicts between the people and the government. Secondly, it helps the government to review and examine the applicability and suitability of the current law. In the true case of civil disobedience, it not only reflects the will of the people, but also reflects the problems of the system. Thirdly, it makes us rethink the values and contents of democracy. The actual execution or the structures of democracy aren’t perfect, civil disobedience, to a certain extent helps to "reconstruct democracy" (Power, 1972).

Rule of law and civil disobedience

One of the characteristic of rule of law in democracy society is procedural justice. Procedural justice concerns the impartialness and transparency of the process of decision making, mostly use in trials. Procedural justice judges the cases in strict accordance with the provisions of the law; the law does not consider the actual consequences of the judgement. Hence, it is possible that as justice and impartial as the trial can be, it contain or produces injustice. It resulted in the questioning of the value of substantive justice within procedural justice, as despite of impartialness practice in procedural justice, there are lots of cases of miscarriages of justice.

Here is not to argue that whether procedural justice is more important than substantive justice or vice versa, as both are as vital when we talk about justice. If we only attach importance to the procedure of justice, we will be deprived of real justice in certain situation, which sometime may resulted in miscarriages of justice. On the other hand, if we only focus on the substantive justice, which tend to be subjective at times; it is impossible for law to establish a form of authoritativeness and equality in the society. Civil disobedience here constitute as a reminder to the government that we should not only put emphasis on procedural justice if the actual purpose of procedural justice is to establish justice; instead consider and rethink the relation and connections between both procedural and substantive justice and how to strike a balance between them. Civil disobedience here is not trying to diminish the important of procedural justice, but to emphasis on the purpose of procedural justice.

Judicial system and civil disobedience

It is impossible to separate policy, law and morality. Constitutional law and political morality are closely link, constitutional law validate and display the values of political morality. Many who are against civil disobedience argue that if civil disobedience is acquiescence, it will become a frequent issue, cause a lawless state. Dworkin counter the perspective, he state that not only will civil disobedience cause minimal harm to the public, but rare enough to cause become frequent issue. Dworkin further explain that if civil disobedience is frequent, one would question the validity of the law of the particular society, that the member in the society felt such injustice to consistently disregard and disobey it (John Arthur, 2009). Peter Suber also state that, "there is no evidence that civil disobedience, even when tolerated by legal officials, leads to an increase in lawlessness (Suber, 1999)."

In the case of civil disobedience, the main issue counts on the clarity and validity of a law. We could not just assume that the disobedient is advocating a privilege to not abiding to the law. The law is not perfect, there bound to be ambiguity in the law, which make it a doubtful law. For example, Singapore penal code 377A, Outrages on decency states that, "Any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to 2 years (Attorney General's Chamber, 2012)."

In the above context, the term "gross indecency" is a board term, and the law did not further define the term. So, it became controversial whether what kind of act between males are consider as "gross indecency". Gay marriage or gay issue are often brought up when discuss about political morality, if a country disallow intimate behaviour between gays, is this consider an issue of civil disobedience, or the issue on the country exploiting the basic of human right? The goes back to the beginning when discussing about moral justification of civil disobedience that we should consider the intentions and basis of civil disobedience before the conviction.

Limitations to civil disobedience

Civil disobedience in a democracy will never be legally justified as it would be encouraging you to break the law, so the issue with the law is the biggest limitation to civil disobedience. Those who object to civil disobedience argues that when a citizen gives his/her consent by paying taxes, reaps the benefits provided by the states etc has the obligation to abide to the law; to openly disobeying the law that one deem "violated their right", which is subjective, and cannot be morally justified.

Secondly, civil disobedience may produce rapid outcome, but it will perpetuate the extreme measures for all future forms of disobedience. Civil disobedience when proceeding to a higher level may result in a revolution, moving from non-violence to a violence situation. And this mirrors Socrates' belief, that "you must do whatever your city and your country commands, or else persuade it that justice is on your side; but violence against mother or father is an unholy act, and it is a far greater sin against your country (Plato, 1993)."

In democracy society, people choose representative to represent them, but having a representative does not automatically mean that the people are represented. Representative who fail to represent the people constitute a violation of the people’s right. The people should be morally justified in this case to fight for their right, though disobeying; they are willing to bear the penalty for the offense and hence did not wreak the authoritative of the law.

Civil disobedience disclosed the flaw in the government and law system, it also reveal that law is not all-powerful, and may run in opposite direction of people’s will and interest. The moral justification of civil disobedience is context sensitive; it should be restricted to a certain situation when there is a defect in the legal system, and the problem that could not be resolve through the legitimate way. Under this condition, civil disobedience, though illegitimate, can be a channel to promote social progress, safeguard the fundamental rights of citizens, supervise and helps the government to review and examine the applicability and suitability of the current law.