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…
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…
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
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…
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…
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