‘Constitutional Theory’: A Review Essay

Civil disobedience is defined as “illegal public protest, [that is] non- violent in character.” Examples of such activity include “trespassing on government property, blocking access to buildings, or engaging in disorderly conduct.” Civil disobedience signifies disagreement with public policies that individuals feel are not being properly addressed through the normal political channels. The sense that they have no other political or legal recourse leads people to respond to the issue with protests. Not surprisingly, civil disobedience has been a popular avenue for climate change advocates. In fact, Kara Moss, an opinion writer for the Guardian, went so far as to claim that civil disobedience might be the only route left in the fight against climate change. Civil disobedience in the realm of climate change has been successful in stopping, or at least slowing down, particular projects. For example, the Keystone XL Pipeline, a pipeline that would transfer fuel from Canadian tar sands to the United States, has been a hotly debated political issue. One reason protests have erupted across the country to try and thwart the construction of the pipeline is the exacerbation this source of energy could have on climate change. Some activists even turned to civil disobedience in a last ditch effort to make their disagreement with the construction of the pipeline known. As a result, on November 6, 2015, President Barack Obama denied the pipeline an essential permit, stating it would not improve the United States’ energy security, would not “make a meaningful long-term contribution to [the] economy,” and would “undercut America’s ‘global leadership’ on climate change.” This was a major victory for climate change activists throughout the country. It showed the potential efficacy of climate change protests and civil disobedience, as it is unlikely that the government would have made such a determination without the public outcry. However, this victory was short lived, as President Trump granted approval for the Pipeline through an executive order in January of 2017, immediately after taking office. Still, despite the President’s actions after the fact, the protests were able to affect political change at the highest level of the executive branch. Although it is popular and effective, climate activists who wish to use civil disobedience still face a substantial problem. Their actions are, by definition, illegal. Therefore, individuals who plan on participating in such actions need to consider the risk of criminal prosecution. To avoid prosecution, the common law and, in some states, statutory law have provided defendants with a potential defense—the necessity defense. Put simply, “[t]he necessity defense asserts that breaking the law [is] justified in order to avert a greater harm that would occur as a result of the government policy the offender was protesting.” While it may be difficult to succeed on the assertion of a necessity defense in a climate change case, it has not stopped climate change advocates from attempting to assert the defense in the past. These activists—turned defendants—are not without help. The Climate Defense Project (“CDP”) is a group of attorneys committed to filling “a gap in the legal landscape by supporting front-line activists, pursuing climate impact litigation, and connecting attorneys with communities and campaigns.” One of the main avenues the group uses to support activists is facilitating climate activists’ use of the necessity defense. Inspired by the recent success of climate change defendants in asserting the necessity defense, and by the critical need for alternative avenues to combat climate change, this Note aims to provide guidance for climate change litigants who wish to use the necessity defense in climate change litigation. The goal of this Note is not to provide a thorough analysis of why the necessity defense is an appropriate mechanism to be used in climate change cases, as other scholars have already answered this question compellingly; rather, its aim is to provide climate change activists and litigants with important advice and considerations on how to use the necessity defense as effectively as possible. Since the burden to properly assert the necessity defense is extremely difficult to meet, especially in climate change cases, this Note hopes to play a role in assisting climate change litigants who attempt to use it.

The aim of the civil disobedience movement was to bring constitutional and political change to the governance system of Hong Kong. This chapter establish a thesis: civil disobedience is justified by the rule of law. It defines civil obedience by showing that its goal is to do justice. The chapter advances a level approach to the rule of law, which integrates different understandings of the concept and necessitates a more substantive goal for the rule of law, i.e. achieving justice. It argues that civil disobedience plays a pivotal role in the development of the rule of law in attaining its substantive goal of achieving justice. Finally, the chapter proposes a developmental model of the rule of law that provides justification for civil disobedience within the framework of the rule of law. In justifying civil disobedience by the rule of law, people may gain a deeper understanding of what the rule of law actually is and will become.

State's emergency power is a responding system adopted by a democratic constitutional state in emergency to consolidate sovereignty and guarantee civil rights. Thus, to a country ruled by laws, the power can only be exercised in emergency. Once the crisis ends, the power is terminated immediately. In the past, Taiwan has been enforced martial law for a long time. With the process of democratization, Taiwan has transformed from authoritarian period to democratic constitutionalism. However, the existing laws seem to be unable to receive immediate effect on the occurrence of many natural disasters, counter-terrorism and economic crisis. Therefore, this text clarifies the specification and design that constitutional emergency power should have from the deficiency in the implementation of state's emergency power in previous time, and hope to realize the legalization of emergency power in Taiwan as soon as possible, so that the government can exert maximum efficiency, handle crisis, guarantee the return of democracy and protect human rights.

Civil disobedience has deep roots in Canadian history. Focusing on the period from 1960 until Quebec’s “Maple Spring” protests of 2012, this article examines the practice of civil disobedience by a diversity of dissenting individuals and groups in Canada. Considered collectively, the examples of peace, anti-nuclear, and civil rights protests; defence of English-language minority rights in Quebec; corporate resistance to Sunday shopping restrictions in Ontario; pro- and anti-abortion advocacy; and the often overlapping activism of Indigenous and environmentalist groups illustrate how civil disobedience endeavoured to influence, whether by conversion or coercion, public opinion on some of Canadian society’s most complex and divisive issues. In defining civil disobedience, the article emphasizes that non-violence is an essential descriptor. Some observers continued to express concerns well into the 1990s that growing instances of civil disobedience did not bode well for Canadian social order and the rule of law. But as civil disobedience became increasingly normalized, particularly following the introduction of the Canadian Charter of Rights and Freedoms in 1982, and widespread social disorder did not ensue, non-violent civil disobedience aligned with a national political culture commonly associated with deference and compromise. Civil disobedience had become “as Canadian as maple syrup.”

Judith N. Shklar on disobedience and obligation in a “society of strangers”

Civil disobedience and conscientious objection are distinct but related social practices that display people’s opposition to specific laws, policies, directives, or schemes. In general, these two practices arise from people’s deeply held commitments. Civil disobedience is more overtly communicative and political than conscientious objection. Civil disobedience is also, almost by definition, a breach of law, which people engage in to push for changes in either governmental or nongovernmental practices. Conscientious objection, by contrast, does not always break the law: sometimes it is a legally protected form of nonconformity. It is also less overtly political than civil disobedience, stemming as it does from people’s desire not to participate in practices they oppose, rather than from their ambition to change those practices. Both practices can be morally justified under specific conditions that, among other things, include doing only limited harm to other people. Moreover, under even more specific conditions, both practices could be said to be protected by moral rights. Civil disobedience and conscientious objection generate pressing normative and political challenges concerning the nature of the rule of law, respect for the rule of law, conditions for deliberative democracy, equality before the law, policing, adjudication, and punishment.

Iceland is known to men as a land of volcanoes, geysers and glaciers. But it ought to be no less interesting to the student of history as the birthplace of a brilliant literature in poetry and prose, and as the home of a people who have maintained for many centuries a high level of intellectual cultivation. It is an almost unique instance of a community whose culture and creative power flourished independently of any favouring material conditions, and indeed under conditions in the highest degree unfavourable. Nor ought it to be less interesting to the student of politics and laws as having produced a Constitution unlike any other whereof records remain, and a body of law so elaborate and complex, that it is hard to believe that it existed among men whose chief occupation was to kill one another.

Climate change challenges the resiliency and integrity of social and legal systems worldwide. Responding to climate change requires us to think systematically – and ambitiously – about how to engage the rule of law as a tool in efforts to limit the causes and consequences of climate change. This Article highlights the important, but under-explored relationship between ongoing pressures on the rule of law and efforts to draw upon the rule of law to limit climate change. It posits that the growth of right-wing populist, nationalist, and authoritarian movements worldwide puts pressure on the rule of law and imperils efforts to advance cooperation on climate change. It then explores the relationship between the rule of law, climate change, and human rights and describes how, despite downward pressures on the rule of law, efforts to embrace and deepen the linkages between climate change and human rights law continue to progress at both the domestic and international level. Ultimately, this Article argues that the rule of law is critical to addressing climate change, but the international rule of law is under pressure and even tentatively held, shared understandings of the rule of law are in question. This uncertainty challenges the ability to leverage law, including human rights law, to achieve effective and equitable change in the climate context.

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.

While philosophers usually agree that there is room for civil disobedience in democratic societies, they disagree as to the proper justification and role of civil disobedience. The field has so far been divided into two camps—the liberal approach on the one hand, which associates the justification and role of civil disobedience with the good of justice, and the democratic approach on the other, which connects them with the value and good of democracy. William Smith’s Civil Disobedience and Deliberative Democracy offers a ‘deliberative’ theory, which constitutes an attractive synthesis of the two camps as it conceives of civil disobedience as a guardian of both justice and deliberative democracy. In this review essay, I first revisit the ‘problem’ of civil disobedience, examining in particular the two pillars of the case against civil disobedience as Smith depicts it, namely, (a) the prohibition on legal disobedience established by the moral duty to comply, and (b) the notion that civil disobedience strains the bonds of civic friendship. I suggest, contra (a), that the duty to comply as Smith defends it fails to be comprehensive (to cover all laws) because it is tightly bound to deliberative democratic procedures, which are involved in the making of only a portion of authoritative decisions; and, contra (b), that civil disobedience does not strain, but instead invigorates, civic friendship. Second, I entertain the possibility that citizens have a moral duty, not a mere right, to resist injustice. I show that Smith’s theory, in particular his account of the moral duty to comply, provides the resources to defend a general duty to resist injustice which, depending on the circumstances, can demand protesting the law (including through civil disobedience) or frustrating injustice (including through covert disobedience). Third, I contend that Smith’s conception of the different contexts of injustice—he identifies three main ones—should be expanded to include what I call ‘official disrespect’ (i.e., routine and open illegal practices by the authorities) and ‘deliberative ignorance’ (which occurs when the state conceals officials programs or misconduct from the public). I argue that each context offers reasons to disobey the law but not necessarily in the civil manner determined by Smith.

Human behavior is influenced both by internal norms or values (what people think is just behavior) and exogenous restrictions including legal sanctions. In the paper we study the interaction between these legal and extralegal forces and highlight the possibility of a countervailing effect of norms and individual behavior in the face of changes in the legal environment. Building on the stylized fact that people's individual values are partly static and partly subject to change over time, we consider these social and legal forces as two main factors that contribute to the change in individual values. Legal innovation that departs from current values may lead to private enforcement norms or civil disobedience. Through private enforcement of expressive laws and through civil disobedience, individuals reveal their approbation or disapproval of laws to other individuals. This may lead to a hysteresis effect on individual values that may have a reinforcing or countervailing effect on the legal innovation. Our model of countervailing norms complements the existing literature on expressive law, by showing conditions under which the equilibrium behavior may move in the opposite direction from that intended by the law. Our model studies the dynamics of such problem and unveils several important predictions and practical implications for the design of law.

Human behavior is influenced both by internal norms or values (what people think is just behavior) and exogenous restrictions including legal sanctions. In the paper we study the interaction between these legal and extralegal forces and highlight the possibility of a countervailing effect of norms and individual behavior in the face of changes in the legal environment. Building on the stylized fact that people's individual values are partly static and partly subject to change over time, we consider these social and legal forces as two main factors that contribute to the change in individual values. Legal innovation that departs from current values may lead to private enforcement norms or civil disobedience. Through private enforcement of expressive laws and through civil disobedience, individuals reveal their approbation or disapproval of laws to other individuals. This may lead to a hysteresis effect on individual values that may have a reinforcing or countervailing effect on the legal innovation. Our model of countervailing norms complements the existing literature on expressive law, by showing conditions under which the equilibrium behavior may move in the opposite direction from that intended by the law. Our model studies the dynamics of such problem and unveils several important predictions and practical implications for the design of law.

This paper argues that the discourse on the rule of law is of particular significance in Asia, partly because the rule of law is, rightly or wrongly, perceived to be more objective or less disturbing than discourses on human rights or democracy, and partly because it is perceived to be an essential condition for economic development. While there are considerable ambiguities about the concept, this is not a reason to dismiss its importance. The paper then develops the core content of the rule of law, with the absence of arbitrary powers as a central theme. Although the rule of law has gained an increasing acceptance among Asian states, many Asian states focus only on the enactment of legislation, whereas the implementation of the law and the availability of remedy are usually ignored. In particular, there is an absence of an independent judiciary, which, it is argued, is essential to the rule of law whatever the legal or political system is. It argues that the judiciary stands between the state and its people, and the legitimacy of the judiciary lies not in popular ballots but in its transparency, its rationality, its fairness and its independence. The paper then reviews the concept of the rule of law as advocated in the recent 4th Plenum of the Central Committee of the Chinese Communist Party where the rule of law was adopted, for the first time, as the theme of the conference, and argues that despite the emphasis on party leadership, the effort to improve and strengthen the judiciary is a positive step that may have greater impact than it is generally expected. The paper then explores the different perceptions of the rule of law in Hong Kong and China, and examines, in the context of One Country, Two Systems, the implications of two decisions of the Hong Kong Court of Final Appeal that have ended up in an interpretation by the Standing Committee of the National People’s Congress of the PRC. The interaction of the two systems highlights in particular the awkward position of legislative interpretation by a state organ in the development of the rule of law. The paper then turns to Hong Kong, exploring the relations between the rule of law and civil disobedience in the context of the recent Umbrella Movement. Finally, the paper returns to the core issue of constitutional review and the legitimacy of judicial review, and argues that it is possible to have the rule of law in an evolving democracy.

Constitutions worldwide occasionally reach moments of public emergency when deviation from the ordinary normative framework is inevitable. To regulate the exercise of public power even during such moments, constitutions have provisions for emergencies and derogation from the normative frameworks. The Constitution of Lesotho is no exception. Section 21, read with section 23, provides both procedural and substantive requirements for the use of emergency powers and derogation from human rights. This constitutional framework exists alongside other pieces of legislation, such as the Public Health Order of 1970, the Emergency Powers Order of 1988 and the Disaster Management Act of 1997. These pieces of legislation, except the Disaster Management Act, predate the Constitution. Hence, they are not in harmony with the Constitution. The two recent incidences of using emergency powers – the 2020 coronavirus-induced state of emergency and the 2022 recall of parliament state of emergency. These two incidences laid bare two problems relating to the emergency powers regime in Lesotho. Firstly, there is no harmony between the Constitution and pieces of legislation relevant to the use of emergency powers. Secondly, the jurisprudence of the superior courts on the subject is still underdeveloped. The purpose of this article is to critically analyse the constitutional and legislative framework for exercising emergency powers and human rights derogation in Lesotho.

Doctors and civil disobedience