Civil disobedience as transformative power under a non-democratic regime: Does the Umbrella Movement undermine the rule of law?

Abstract

ABSTRACTThe article begins with asking two questions. First, does the Umbrella Movement (Movement) undermine the city’s rule of law? Second, is the Movement an act of civil disobedience? One may argue that the Movement breaks the law in order to better adhere to the city’s higher law of universal suffrage and thereby continues to pay respect to the law. Nevertheless, several major surveys find that universal suffrage has not been established as the city’s higher law. The claim of the Movement does not seem justified by a related higher law and is therefore not governed by law. Moreover, major theorists of civil disobedience maintain that civil disobedience only makes sense in a democratic constitutional order. Nevertheless, Hong Kong is not a democratic polity, and the Movement disagrees with parts of the kernel of the city’s constitutional scheme. The Movement cannot rely on the major theories of civil obedience to claim to stay under law. In the past decades, the major events of civil disobedience worldwide, such as the ‘colour revolutions’, mainly took place in non-democratic regimes. Major theories of civil disobedience are unable to describe, explain and evaluate these events. In order to fill this theoretical void, based on the experience of the Umbrella Movement, the article proposes an alternative account of civil disobedience. Civil disobedience in this regard is understood as a legitimacy-building and regime-transformative power. Its nature implies its own rationale to adhere to the rule of law and the major principles of civil disobedience. My account may also apply to the Western democratic societies that encounter legitimacy or regime challenges.