Civil Disobedience and Law Professionals

Henry David Thoreau wasn’t a lawyer or a judge. That constraint didn’t stop him from trying to prompt policy change. He felt that it was his responsibility to put forth legal flaws in his role as a concerned citizen. Thoreau became a civil disobedient in 1846 by resisting a U.S. state tax to fund war and slavery. His 1849 publication Civil Disobedience voiced the mechanism of non violent legal protest to keep government on its toes. His definition of civil disobedience suggested that it was legitimate for a person to defy a law that hurt his conscience.

Since then civil disobedience has become a transnational theory. The core idea of rebellion remains. Citizens engage in civil disobedience because they disagree with the moral intents or effects of certain laws. Their reasons for dissent though are a matter of their perceptions. Because subjective factors are involved, it should be secondary to a definition of legal disobedience whether one has a legally legitimate base for their beliefs. An oppressor and an oppressed have equal rights to protest. It is sufficient, chiefly in a democracy like India, for the right to activate when a member of the public believes that his viewpoint is at risk of being overlooked by the legal framework. The citizen can then choose to take action. The civil disobeyer does this by expressing non adherence to the law. Thus he tries to resolve his conflicting interests by creating justice for the cause either outside the legal environment, or with it by exercising non violence and accepting legal sanction willingly. Not only does the citizen break the law, but he justifies the illegality by matching a personal crusade with a moral need to honor one’s conscience.

History has shown that there are two types of civil disobedients. An individual or group may defy a law that he or it feels excludes him or it of protection or participation from a right or principle. Here the subject acts as an oppressed. On the other hand, one could receive full benefit from the law but still break it to show dissatisfaction with its application to something or someone else. The subject acts as an agent of an oppressed. But how a subject acts depends again on a subjective understanding of conscience. Since there isn’t a standard interpretation of what a “good” conscience is, not all civil disobeyers behave uniformly. That can mean that one person may believe a “pure” conscience can’t accept any concept of violence to deliver a “higher” justice. Another may deem that he’s right to use aggressive means in his aims. However, any participant in violence clearly is committing a crime. An officer of the law who promotes civil disobedience in any way is legally bound not to use the tools of dubious coercion.

Do legal professionals have a role and responsibility then to promote civil disobedience? Yes. Individual legal professionals, be they lawyers or public administrators as mayors, governors, or ministers of state, or the judges monitoring the court systems have distinct duties in addressing civil disobedience. The difference between lawyers and judges is that the former presents justice, which provides an analysis from which the judge administers justice. An often assigned reading text for law students is Pericles and the Plumber (1967) by William Twining. The essay views lawyers as technicians. Like plumbers they follow set rules to do the job. They needn’t analyze past the task. Extending Professor Twining’s analogy, the lawyer is the skilled Plumber but it is the judge who is the enlightened Pericles.

This contrast in the roles of legal professionals affects the profession’s attitudes to civil disobedience, and the difference determines the response in legal obligations. For instance, the lawyer merely by virtue of his specialized training has a commitment above that of the average citizen to uphold justice, which he can do through undertaking a defence of the civil disobedient. The lawyer as Plumber can promote civil protest actively by being at peaceful assemblies in society like sit-ins and strikes, or he can promote civil disobedience indirectly through a “pure” law setting in the court system. He or she can lawfully promote civil disobedience by staying within Schedule II of the Bar Council of India Rules. Section I requires an advocate to maintain a respectful attitude towards the courts by bearing in mind that the dignity of the judicial office is essential for the survival of a free community. Section II offers a broad interpretation of the advocate’s duty to the client. The advocate must fearlessly uphold the client’s interest by all fair and honourable means without regard to any unpleasant consequences to himself or another. This implies that a lawyer is expected to employ each legally available remedy for the client competently and in that way also serve the public interest. There’s no provision in the Rules to compel an advocate to represent clients when approached. A fair and adequate option, it can serve the agendas of lawyers of different practicing beliefs. Take the case of two legal professionals such as a Gandhi and a non-Gandhi who hold antithetical ideologies. One promotes civil disobedience to acquire equality for all as the other defends civil disobedients to fulfill his supremacy theory that the legal system should exclude certain racial and religious groups. Both have a right to—whether they champion the oppressed or the oppressor. In his conscience, a non-Gandhi may believe in his cause just as strongly as Gandhi and Sir Thomas More and correlate that his dogma is as upright. Therefore, he can promote civil disobedience and still work within his proper capacities, roles, and responsibilities as a lawyer.

Society’s reply should be non interventionist. Simply because the majority may contest a lawyer’s ethical ideologies doesn’t mean necessarily that society has a legal right to stop the lawyer from practicing his views. In India and other countries the lawyer is entitled to individual Constitutional rights of freedom of opinion and expression. He can have a right and responsibility to promote civil disobedience as long as he adheres to professional conduct. Whether the object of the promotion is “good” or “bad” in the interests of society is a separate issue altogether, and it is the responsibility of the judge to adjudicate the issue.

The judge thus has a more collective responsibility. The Judge as Pericles has a more integrated role than an advocate, whose main duty is to serve the client’s wellbeing. The judge sifts the rule of man from the rule of law to steer justice towards society’s welfare. In that responsibility, however, is a judicial choice to sacrifice individual rights. A balancing act may be required to guard a party from discrimination by depriving another of the rights to freedom of action or speech.

Therefore, a court should not reject an act of civil disobedience automatically on the grounds that the act is a violation of law, since the minority disobeyer’s action could actually benefit the majority. A court should be Periclean by scrutinizing every civil disobedience act separately. When determining to promote the civil disobedience or not (condone or restrict) it should act in the context of history and present circumstances. If society and the law have tolerated a past civil disobedience act to their detriment and a judge is asked to consider a similar act now, the judge should evaluate (a) the prospects of a repeat negative effect and (b) conversely, if circumstances have changed so that tolerating the act would have a positive effect in the present. A court must weigh and balance objectives carefully when making an overall decision. If it can make a decision directly in its jurisdiction then it should try to. Otherwise the court can exercise the powers of judicial review to declare the law ultra vires after which the legislature can enact a new law. In this way the court may promote civil disobedience indirectly.

An instructive illustration for India of the Periclean approach to promote or not to promote is by the U.S. Supreme Court. In Wisconsin v. Yoder (1972) the Supreme Court tried to balance societal interests with those of the minority respondents. The respondents were Amish parents who stopped sending their teenage children to school. They feared that continued exposure to mainstream culture would sway their children from their traditional lifestyles. The refusal went against a mandatory state educational law. The court answered the defiance by tolerating the rebellion. Its reasons were that the Amish community would be forced to assimilate into modern society by yielding its beliefs, or perhaps have to find religious satisfaction in other faiths. The judgment reflects the court’s values that the respondents should not be made to compromise their rights. It was to deter the growth of future grievances that the bench accommodated the respondents’ rights by including them in the interests of society.

The judgment supports the right of civil disobedience. It also simultaneously halts such acts by catering to the respondents’ conscience and moral principles. Yet “halts” may not mean “ends” for the verdict is still incomplete.

Chief Justice Burger had limited the identification of the respondent party to the parents of the children in question and not to the children themselves. As a result, he restricts the interpretation of the principle issue. The court determines if the parents’ rights of free exercise of religion are breached. It overrides the desires of Amish children who might wish to prolong their education. The failure to ask beyond the parental interest is an omission. So, should an Amish child insist on a right to complete one’s education in a public or private institution, then he or she, too, would be guilty of civil disobedience—against one’s own Amish laws and system. Then, if the child’s petition were to be determined by secular justice (i.e. courts of the state) the court would be in a double dilemma: reconciling the intolerance of Amish “laws” with the tolerance of the state. Other jurisdictions in like test cases would do well to heed the cons of the Burger court’s trade off.

A Canadian failure to solve the conflicts of a subpopulation has been in the legal profession’s dealings with Native Indian tribes. Today some First Nations people are alienated from the legal culture. One reason is that the government and courts may take a reverse approach from Wisconsin v. Yoder, which at least is partly conciliatory. The Canadian framework often has not tried to lessen the civil disobeyer’s fear of cultural assimilation in mainstream society, or redress past laments accurately. The 1990 Oka siege in Quebec shows how the legal profession mishandled civil disobedience by the Mohawk Warriors. The Mohawks protested town plans to build a golf course on their ancestral burial site. The original act of civil disobedience was to ignore a court order approving construction by blockading the land.

The legal profession, as it was represented by the overall term “government,” including lawyers, judges, governors and ministers, erred two-fold in its role. First, the government didn’t analyze the situation without bias. From day one, the government assumed that the civil disobeyers were criminals although the symbolic barricade didn’t involve criminal violence. It can be argued that the nonviolent barricade was a breach of the public peace that was aggravated by the Mohawk show of guns. True but the threat was outweighed by the fact that the weaponry wasn’t used then. The theory of non violence was practiced until the Mohawks implemented self-defence.

The second point is that the government wrongfully participated in civil disobedience. It has never been proven who began gunfire at Oka, but it was the government that first introduced the use of violence. The tactics that the government sought against the enemy, for that is how the Mohawks were perceived, had connotations of political intimidation: tear gas use by the police, backup presence of the military, and armed blockade of food and emergency supplies. The effect was that the government’s myopic promotion of civil disobedience increased the dispute. The Mohawks’ initial act of civil disobedience was intended as a means of communication within the legal system. The Mohawks were not asking for sovereignty; they merely wanted their land claims be honored. By treating the civil disobeyers as criminals rather than as citizens owed a presumption of innocence under s. 11(d) of the Charter of Rights and Freedoms, the government shaped Mohawk demands into a sovereignty issue. Another irony is that when the Mohawks surrendered over two months later the Prime Minister perceived the act as a victory for the rule of law. As a lawyer and head state officer, his relief was that there had been no compromise with those forcing change through armed violence. That view discounts that Periclean reasoning can consider compromise at any stage, and without this element of negotiation it questions if the law professionals at Oka administered a Periclean justice. It remains open whether how the Oka clash was resolved has ceased Native misgivings effectively or permanently.

In conclusion, it is plain that a democracy grows when Pericles and the Plumber function jointly. A democratic society should house free speech and thought, though it must have the discretion to limit these fundamental freedoms if the public wellbeing is risked. The response of the Canadian Prime Minister relates the difficulty of wearing two hats as a law professional. The challenge is intensified when the lawyer-judge practises civil disobedience in a social setting. Two pioneers that illustrate this are Sir Thomas More and Gandhi. Sir Thomas More exercised civil disobedience by himself, while Gandhi spread satyagraha on a wide scale and sought amnesty for Bhagat Singh. In 1532 Sir Thomas More resigned as Lord Chancellor of England according to his conscience. He refuted as arbitrary the Act of Succession instigated by King Henry VIII. He knowingly then withstood twists of the law machinery that ended his liberty under lies of treason. His last protest was to kneel to capital punishment and is perceived as a sacrifice for the greater good. Gandhi was anti capital punishment. Alas, he couldn’t secure exoneration for Bhagat Singh, Sukhdev, and Rajguru under the Gandhi-Irwin Pact of 1931. Jailed for vigilante justice against British rule, the revolutionaries were also civil disobeyers with similar ideals to Gandhi. It appears, though, that Gandhi was able to justify their deaths to himself because they had endorsed violence. He distinguished that Bhagat Singh wasn’t a devotee of non-violence but didn’t subscribe to the religion of violence either. Hence, though we praise the courage of these brave men, Gandhi wrote, we should never countenance their activities. Our dharma is to swallow our anger, abide by the discipline of non-violence and carry out our duty. If these statements continue to hold true for the legal profession, as they must, then lawyers shouldn’t censure lawyers for defending undesirables. The profession should refrain from physical and other harassment of all parties even if it seems that a suspect has behaved immorally. Such threats move the social misfit tag to the law.