Blind obedience to the law is the dictator's friend
Robert Henderson wonders if political disobedience is ever justified
Reprinted with permission from the March/April 2003 issue of Right Now!
The government of 18th Century England has been described as "aristocracy tempered by rioting". There is something of that in any society, for all who exercise power become corrupted in some degree by the identification of their interest with the common good.
Even in a place as politically placid as modern Britain, rioting has played its part in fundamental change, the last time being in 1990 when the Government was finally frightened enough by a serious riot to drop a tax -- the community charge, popularly known as the poll tax -- in which Margaret Thatcher had invested a great deal of her personal prestige.
That is the reality of politics. Democratic theory is rather at odds with the reality. "The law must be obeyed" and "Violence is always wrong" are two of the most chanted political mantras in those states which seriously pretend to democracy. Not bad chants as political dicta go, for the law is the skeleton upon which society rests and violence can become an endemic social disease with ghastly ease.
Yet the logic of an absolute bar on disobeying the law or engaging in violence for political ends is that an elite may behave as badly or dangerously as they want without fear of punishment.
Suppose, for example, the House of Commons passed a law that extended the life of a parliament to 50 years -- this the Commons could do quite legitimately, because there is no constitutional restraint on parliament on the acts it may pass.
Would we simply accept such a gross political abuse because it had been achieved legally, that it was done within the form of democratic procedure? The sane answer has to be no. But if we do not accept it, how do we act against those who abuse power without provoking something approaching anarchy or simply replacing one abuse of power with another?
The general answer can be found by addressing another question, namely what is such action (which includes everything from passive resistance to full blooded civil war) a substitute for?
The answer is that it replaces the formal democratic political process and becomes legitimate where a society is so ordered that there is no formal democratic process or where meaningful participation in a formal democratic process is denied by those in power, or when the behaviour of the ruling elite constitutes treason.
That is all very well as a general description of the circumstances in which direct action should be taken, but how in practice do we determine when such action is legitimate and the extent to which it is legitimate in any particular political circumstances?
When is it reasonable to disobey the law?
There is a lesson from the past. In the 12th Century, there was developed the doctrine of "rightful tyrannicide", the ultimate in direct action. The first and probably the most famous of its proponents was John of Salisbury ("He who usurps the sword is worthy to die by the sword.")
For John, the distinction was between power legitimately and illegitimately exercised. In his work Policraticus he puts it thus:
"Between a tyrant and a prince there is this single or chief difference, that the latter obeys the law and rules the people by its dictates, accounting himself as but their servant. It is by virtue of the law that he makes good his claim to the foremost and chief place in the management of the affairs of the commonwealth" (Policraticus, Bk IV, chapter I: Dickinson's translation, p3).
That is a sound distinction for any society. In our world, formal kingship with political power is a rarity, yet we have what are, in effect, elected monarchs in our presidents and prime ministers. Even in the best of the 'liberal democracies', power is remote from the masses.
Thus it is reasonable to apply John's test of just and unjust behaviour to those we elect as well as to unelected governments. It is not enough that politicians have formal political legitimacy through the ballot box; they must also play by the rules of the democratic game and act as servants not masters.
When can one say that politicians are not playing by the rules of the democratic game? The most obvious occasions are when the political requirements for a free society are absent.
Those requirements are, I suggest, these :
First there must be free expression, for a free society must be democratic and a democratic society cannot outlaw any aspect of life from debate and be called either free or democratic.
The mass media must be both free of government control and give opportunities for the expression of a wide range of political opinion, for example through the same sort of laws which are designed to ensure 'balance' during general elections and a statutory 'right of reply'.
All adults must have the vote and meaningful opportunity to engage in political activity. Political parties and individual candidates must be allowed to operate freely and not at the discretion of the state. The state must not place obstacles, such as deposits, in the way of candidates for election which disadvantage individuals and smaller or new parties.
Outside the process of politics lie the necessary safeguards to protect the individual from the state. The law must be made only with democratic authority. The law must be equally applied. The law should in principle disadvantage or advantage every person equally. The state should not use disproportionate force against its people nor have a monopoly of force.
To that end the people should be allowed weapons and no weapon that is forbidden to the people should be used against them by the forces of the state.
That is the ideal. The important thing is not perhaps that all these goods are met in full measure in any society, although in principle all could be given the force of law, but that sufficient of them are observed to make democratic participation and control of the elite to be such that extra-democratic action is not required.
Of course, there can be no absolute standard by which that may be judged. Ultimately, the moral decision as to when political circumstances are such that they fail to allow proper control of the elite by the masses is a personal one for each individual.
To minimize its obvious dangers, extra-democratic action should be proportionate to the political circumstances and the ill to be cured and as moderate as is compatible with necessary effect. Faced with an unambiguous, brutal and efficient dictator, the masses are left with little alternative but extreme violence such as assassination, because other and lesser forms of protest are effectively denied.
That is not the case in societies which have at least the form of representative democracies. In such societies non-violent methods can be effective and violence is inappropriate as anything but a final resort, when all else has failed and the damage being done by those in power is considerable.
Governments in states which have both the form of representative democracies and some of the content are peculiarly vulnerable to non-violent resistance, provided it is truly widespread or arises from a strike in a vital industry. Such governments are bound by the pretence at least that they are not dictatorships. Thus strong-arm measures which are the common currency of the dictator cannot be used with impunity because they are publicly observed and sooner or later elections must be held.
Generally, the more broadly power is spread in a political system, the wider the range of extra-democratic action available and the less extreme it need be.
Is violence ever justified in an ostensible democracy? This is perhaps the most problematical of political questions. The easy answer is no, but the truth is that although non-violent protest may be effective in an ostensible democracy, it often in practice needs a focusing act of violence or the threat of violence to bring those with power to a decision to change their policy or behaviour.
Thus it was with the poll tax. A serious riot against the tax was needed. It took place in the most famous modern London site for demonstrations, Trafalgar Square. Within a few months the poll tax was dropped. Was that violence justified?
I would say no because the poll tax met the type of criteria I outlined earlier. It was formally democratically determined, it applied equally to all citizens of similar circumstances and so on. But what of the other example I raised where a parliament prolonged its term greatly or indefinitely? Then violence would be justified because the formal democratic process has been suspended, albeit entirely legally.
There is one instance where violence is unequivocally justified in a formal democracy, namely where the political elite as a class engages in behaviour which is objectively treasonable. It is justified because such a matter becomes a question of self-defence.
Treason is a slippery word, yet it clearly has an objective meaning. In a democratic context it is the betrayal of the interests of the mass of people, whether through the advantaging of the country's elite at the expense of the masses or through betrayal to an external power.
Minimalist, selective violence is arguably the most effective. Elites do not care about violence perpetrated on the masses unless the violence threatens to provoke public unrest which the elite is not confident of controlling. What they really care about is violence directed at the elite. A good example of this mentality concerns the IRA and successive British governments in the years 1969-1984.
The IRA practice of public bombing continued for 15 years after 1969 without gaining anything from British governments of any political colour. The IRA then attempted to kill Margaret Thatcher and members of her cabinet in the Brighton bombing of 1984 during the Tory Party conference. Within 18 months the Anglo-Irish Agreement, which granted a foreign power legal rights in Northern Ireland, had been developed and signed by Margaret Thatcher and the Irish Prime Minister.
The restriction of violence to those in the elite has another great advantage: the mass of the population will not feel threatened. This means that they are less likely to become viscerally antagonistic to the perpetrator of the violence. Moreover, if the ends of the perpetrator of violence are reasonable, then the mass of the population will probably support them tacitly or at least not violently oppose them.
Recent developments in Britain are symptomatic of what is happening throughout the West. Our elite is gradually squeezing out of our political system such democratic control as has being grudging conceded over the past two centuries. We have only two parties (if still that) with a realistic chance of forming a government. Increasingly they offer no more than variations on the same theme. The only real choice a British voter has on almost all important areas of policy is between having more or less of the same general fare.
Worse, much of that fare is self-evidently designed to remove more and more power from the political institutions we have. Indeed, in large part the similarity between both the theory and practice of British parties and governments is the result of the wilful giving up of sovereignty through our membership of the EU and various organisations such as the UN and WTO, with their concomitant treaty obligations.
Because of this ideological coming together of the major parties and the draining of power from Westminster to supranational bodies and interests, there is a growing need by the elite to suppress dissent because no real choice is any longer on offer to the voters. To this end successive British governments have become ever more oppressive.
The Blair government has behaved in a distinctly disturbing manner over the past six years. We have had the Anti-Terrorism Act (which allows the government in practice to define any individual or group as terrorist if they engage in public protest), the Regulation of Investigative Powers Act (which amongst others things allows the state to spy electronically on people without a warrant), and such promised authoritarian delicacies as the abridgement of the right to jury trial. All the pieces of the police state jigsaw are already in place or shortly will be.
Yet Blair is simply building on the example of Margaret Thatcher and her successor, who showed both a cavalier disregard for the law on occasion (most notably during the miners' strike) and began the process of attacking those features of the legal system which had long offered a safeguard to the individual, such as the absolute right to silence.
The increasingly authoritarian nature of Blair's government was vividly demonstrated during the lead up to the recent May Day protest in London and the treatment of the demonstrators themselves. For weeks prior to the demonstration there was a truly shameful collusion between politicians, police and the media to intimidate the protesters.
Scare story after scare story was fed by the government and the police to the media who happily printed it as though it was hard fact. If one believed the propaganda -- for that was what it was -- on 1st May 2001 the centre of London was to be razed in a manner akin to Alaric's sack of Rome. The police issued warnings' to the protesters which could only be interpreted as threats of violent action against them.
Come May Day, some 6,000 demonstrators appeared. At least we were told they were all demonstrators. In fact, many may not have been anything more than innocent bystanders. The protesters/innocent bystanders were imprisoned -- there is no other word for it -- before any public order offences had occurred, for more than six hours by the police who trapped them in a restricted area in the West End of London and prevented them leaving.
It was pre-emptive policing, in itself a sinister thing, almost certainly amounting to false imprisonment.
Have we reached in Britain the point where direct action is the only meaningful action for those outside the political elite? The answer I would say is indubitably yes if we are not to stand by helplessly while our freedoms are remorselessly removed.
But it cannot be said too often or too emphatically that the dangers of such action are great. If it is not to be merely the prelude to anarchy or the assumption of power by another oppressive regime, it must be taken within a moral context. It is to be a means to an end, not an end in itself. That end must have a clear and limited moral purpose. The end must be to create or restore those structures, in content as well as form, which are necessary to a free and democratic society -- nothing more or less than that.
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