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Civil disobedience used to get legislation to stop injustice

Annotated Bibliography While this distinction is clear in theory, in practice the line is significantly blurred. To explain, civil disobedience may be direct or indirect. Direct disobedience breaches the law that is the focus of protest. For example, a group of people who fish for their livelihood may decide to disobey a law restricting their fishing practices R v Kapp, 2008 SCC 41 at para 9. Indirect civil disobedience involves breaching an unrelated law to bring attention to injustice.

The line between dissent and civil disobedience is particularly blurred in cases of indirect disobedience. Consider, for example, a protest march. If the march is conducted without proper municipal authorization, it is illegal even if participants are not aware of that fact for more information on municipal bylaws and protest, click here. Even if proper authorization is in place, protesters often cause minor infractions that the police may or may not target - for example, disturbing the peace, causing a nuisance, loitering or disrupting the flow of traffic.

Civil Disobedience

The police have significant discretion in how they treat these minor infractions. Recent years have seen police err on the side of arrest and prosecution. Further complicating matters is the fact that legal dissent can quickly descend into illegal civil disobedience with little warning. A person may be marching in what starts as a lawful protest. However, violent protesters have been known to infiltrate a peaceful protest to shield their actions McGrady at 31.

If other protesters start committing vandalism, does this change the nature and lawfulness of the protest? Is that original person engaged in dissent or civil disobedience? The answers are not entirely clear. There is a short and a long way to explain the link between dissent and accessing justice. The abridged explanation rests on understanding the crucial distinction between law and justice a fundamental pillar of natural law: We obey the law because it purports to align with our sense of justice.

In other words, law is merely a means to access justice, it is not an end in and of itself. Sometimes civil disobedience used to get legislation to stop injustice crucial link between law and justice is lost. In these cases, the laws themselves become a mechanism of injustice. The more lengthy explanation reaches the same conclusion, but digs into more complicated questions about the role of civil disobedience in liberal democracies.

This engages lofty philosophical theories about the foundation of our society, democracy, and the rule of law. It demands that everyone -- including the government — be subject to the same laws. In a liberal democracy, the government operates within the rule of law to represent the will of the people.

  • Annotated Bibliography Are you interested in expanding on the research?
  • Like many other issues, this is the subject of debate with no easy answers;
  • There is a serious issue to be tried or, in some cases, that they have a strong case on the surface.

To ensure the line of communication between government and the people stays open, we constitutionally protect freedoms necessary to express political dissent and opinion Charter at ss.

They argue that people who disagree with government policies have a plethora of legal and constitutionally protected avenues to pursue. Thus, one never has the right to step outside this regime to make their point see, for example, Joseph Raz, The Authority of Law: Essays on Law and Morality,2nd ed Oxford: Oxford University Press, 2009 at 266-75 [Raz].

The response to this criticism argues that disobedience goes beyond mere political participation, and engages the basic foundation of our society. The social contract is a classic philosophical theory that attempts to explain how a just society is structured. At its most basic, the social contract is an implied exchange of promises between a state and its population. The people in a society collectively agree to limit their freedoms and obey laws passed by the government, and in exchange, they enjoy a safe, orderly, respectful community.

A Theory of Justice Leiden: Brill, 2013 127 at 130 [Forst]. The foundation of this social contract is the natural law, including the dual pillars of civil disobedience used to get legislation to stop injustice and justice.

When governments impose unjust laws, they have breached a fundamental condition of the social contract. This is so irrespective of majority support, as the will of the majority does not guarantee respect of natural law.

As such, the social contract theory allows and, some would argue, demands civil disobedience in a liberal democracy where it imposes unjust laws. Civil disobedience is thus a mechanism that restores the social contract Esmonde at 327; Forst at 142. The idea of natural law, social contracts, and moral right and wrong may seem too academic or philosophical to have meaning in the real world.

However, there are numerous examples of it guiding our modern political world. Consider the situation of Nazi Germany. The people of Germany democratically elected that government to power. Does that mean that everyone was right to obey their laws? Blindly following those laws was no excuse. Their actions constituted crimes against humanity - a principle grounded firmly in the natural law Zinn at 901-902; Esmonde at 327.

Liberal philosophers including Joseph Raz, John Rawls, and Ronald Dworkin have drawn their own connections between civil disobedience and justice, building on the concepts and experiences of the visionaries outlined above Rawls at 335-43, supra, Ronald Dworkin, Taking Rights Seriously London: Their exploration of the link between disobedience and justice has been considered and critiqued by countless activists, academics and policy makers around the world see, for example, Haskar.

In essence, there is no singular source that can be attributed with the idea of civil disobedience as a mechanism to achieve justice. The idea that unjust laws must be challenged, and that the existing legal system may be part of the problem, is likely as old as time. Throughout history, visionaries and activists have taken this concept and honed it to meet the particular injustice they challenged.

In terms of a moral right, philosophers have divergent views on when people are justified in turning to civil disobedience.

John Rawls has argued that people have the right to engage in civil disobedience when it is undertaken 1 in response to an instance of substantial and clear injustice; 2 as a last resort; and 3 in a way that will not destabilize the entire system of law Forst at 139; Rawls civil disobedience used to get legislation to stop injustice 326-328.

Joseph Raz believed that civil disobedience is only justified in illiberal societies, where people have been denied avenues of political participation Raz at 272-73. Mahatma Gandhi believed that civil disobedience was the inherent right of every citizen, derived from the duty not to participate in evil. In his view, evil deeds should never be permitted in civil disobedience, no matter how honorable the ends were Haskar at 410-411. Our legal right to engage in dissent and disobedience is outlined in our laws, and particularly, the Canadian Charter of Rights of Freedoms.

This legal right is described in more detail below — click here to be redirected to this discussion. What are the features of civil disobedience? Like many other issues, this is the subject of debate with no easy answers. The mainstream view of civil disobedience advanced by leaders such as Gandhi and Martin Luther King Jr states that, to constitute civil disobedience, an act must have four key features.

Non-violent; Protesting an injustice typically an unfair law ; and One were protesters willingly accept legal penalties. Canadian judges have largely adopted these features.

  • When raised in the context of dissent, injunction applications raise significant concerns about access to justice;
  • Less mainstream voices have argued that civil disobedience need not be constrained to the Gandhian parameters;
  • Further complicating matters is the fact that legal dissent can quickly descend into illegal civil disobedience with little warning;
  • Section 2 b also does not extend to every public place;
  • At its most basic, the social contract is an implied exchange of promises between a state and its population;
  • In a liberal democracy, the government operates within the rule of law to represent the will of the people.

Less mainstream voices have argued that civil disobedience need not be constrained to the Gandhian parameters. For example, Jackie Esmonde has argued that non-violence and open acceptance of punishment need only be adhered where protesters accept the underlying validity of the state.

Without this basic premise, she argues, the traditional constraints on civil disobedience disappear Esmonde at 329. This view is echoed by Howard Zinn, who argues that refusing to accept punishment sends an important message: I will defy it to the end. It does not deserve my allegiance" Zinn at 917. While this more aggressive stance may be a troublesome concept for many Canadians to accept, it is worth noting that Nelson Mandela espoused a similar view in his fight against the apartheid regime.

  • Civil disobedience is thus a mechanism that restores the social contract Esmonde at 327; Forst at 142;
  • To explain, civil disobedience may be direct or indirect.

Mandela differed from Gandhi in his view that violent actions against property could be justified to overcome evil and achieve justice where the people had been excluded from any avenue of meaningful participation in government, and no other options existed: All lawful modes of expressing opposition to this principle had been closed by legislation, and we were placed in a position in which we had either to accept a permanent state of inferiority, or to defy the Government.

We chose to defy the law. We first broke the law in a way which avoided any recourse to violence; when this form was legislated against, and then the Government resorted to a show of force to crush opposition to its policies, only then did we decide to answer violence with violence Mandela. Canada protects the right of its inhabitants to express their dissent, both individually and collectively through peaceful assembly and association Charter at ss 2 b c d.

Like all rights and freedoms enshrined in the Charter, however, these entitlements are not limitless. Legal forms of protest dissent are permitted, while illegal acts civil disobedience are subject to the full force of criminal law — so long as the government can demonstrate the criminal law is reasonably justified in a free and democratic society.

For more information on how the Charter operates, click here. Section 2 of the Charter expressly protects our freedom to assemble peacefully: As such, the vast majority of Charter cases dealing with dissent and civil disobedience are decided under the framework provided in section 2 b for example, see Calgary City v Bullock Occupy Calgary2011 ABQB 764.

These cases hold that people have the right to engage in dissent or civil disobedience civil disobedience used to get legislation to stop injustice government property or without fear of criminal sanction so long as they are consistent with the boundaries and purposes underlying section 2 band so long as the government cannot reasonably justify their interference with those rights.

Section 2 b also does not extend to every public place.

Dissent, Disobedience and Justice

The protesters claimed that the Charter protected their freedom to protest on public property, and that the criminal charge was invalid. The Superior Court of Justice disagreed. In its view, smearing blood on the provincial legislature was vandalism and a form of violence to property. Their form of expression was not protected by the Charter. Even if a restriction on falls within the boundaries of section 2 ba government restriction may be justified under section 1 of the Charter.

In Ontario Attorney General v Dieleman, [1994] OJ No 1864 Ont Gen Div [Dieleman]the Court was asked to issue an injunction restraining anti-abortion protesters from staging demonstrations abortion clinics, hospitals and at the offices and homes of certain doctors.

The demonstrations were varied -- some were silent vigils, while others involved harsh language, signs, and a potential for physical assault. The Ontario Court of Justice granted the injunction in part.

More detailed information on section 1 of the Charter is located here. Legal Tools, Dissent, and Justice Criminal Tools Protesters and government authorities use various tools at their disposal to conduct and influence civil disobedience movements. Particularly the rules around arrest, bail and sentencing have been used by both sides of fence to achieve their version of justice. Protesters have found that tools enhancing solidarity are useful to achieve their ends.

For example, in some demonstrations, arrestees are counselled to refuse to give their names to police when being arrested.