The Change in Judicial Practice in Cases Concerning Civil Disobedience Protests and its Constitutional Significance
| Published date | 01 July 2023 |
| Author | Pok Yin S. Chow |
| Date | 01 July 2023 |
| DOI | http://doi.org/10.1111/1468-2230.12787 |
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Modern Law Review
DOI:10.1111/1468-2230.12787
The Change in Judicial Practice in Cases Concerning
Civil Disobedience Protests and its Constitutional
Signicance
Pok Yin S. Chow∗
Since the enactment of the Human Rights Act, the law concerning civil disobedience has
changed dramatically. Originally sceptical about this for m of protest activity, the UK courts
now recognise the value of civil disobedience and the need for its protection on the grounds
of free expression and assembly. Yet, as lawbreaking plays a crucial part in civil disobedience,
the shift in judicial attitude may also aect how we view civil disobedience as a constitutional
practice. This article reviews the change in direction in the development of case law on civil
disobedience and discusses its constitutional signicance.It argues that a more tolerant approach
to civil disobedience will strengthen constitutional democracy.
INTRODUCTION
Civil disobedience has a long history in the common-law world and occupies
an important place in legal studies.1However, conceptualising the role of civil
disobedience in law has not been easy, given its contradictory implications for
the legal system.2On the one hand,a conscious and purposeful violation of the
law to achieve one’s desired ends could be interpreted as an attempt to under-
mine the rule of law.3On the other hand,by recognising civil disobedience as
a legitimate means of voicing dissent, a democratic society acknowledges that
∗Senior Lecturer, Newcastle Law School, University of Newcastle, Australia. I am grateful to the
anonymous reviewers at the Modern Law Review for their immensely helpful comments. I also
thank Urania Chiu, Linda Cho, Taige Hu, and Stephy Kwan Wing Yee for their research assistance.
This project was funded bythe Centre of Public Aairs and L aw (Project reference: 9609002; CPAL-
RS-01) at the City University of Hong Kong (CityU) while the author was an Assistant Professor
there.
1 See for example Ronald Dworkin,Taking Rights Seriously (Cambridge,MA: Harvard University
Press,1977) 186-187;Kimberley Brownlee, Conscience and Conviction: The Case for Civil Disobedi-
ence (Oxford:OUP,2012); Matthew R.Hall, ‘Guilty but Civilly Disobedient: Reconciling Civil
Disobedience and the Rule of Law’ (2007) 28 Cardozo Law Review 2083; Vinit Haksar, ‘The
Right to Civil Disobedience’ (2003) 41 Osgoode Hall Law Journal 407.
2 Alan Gewirth,‘Civil Disobedience,Law and Morality: An Examination of Justice Fortas’Doc-
trine’ (1970) 54 The Monist 536.
3 Lewis F.Powell Jr, ‘A Lawyer Looks at Civil Disobedience’ (1966) 23 Was h in g to n a nd L e e L aw
Review 205;Delber t D.Smith, ‘The Legitimacy of Civil Disobedience as a Legal Concept’(1968)
36 Fordham Law Review 707, 722; Abe Fortas, ‘Dangers to the Rule of Law’ (1968) 54 American
Bar Association Journal 957.
© 2022 The Author.The Modern LawReview © 2022 The Modern Law Review Limited. (2023) 86(4) MLR 927–950
Judicial Practice on Civil Disobedience
‘the law is not simply a goal already achieved,but is a process of becoming’,4
and that throughout the past decades, civil disobedience has been ‘at the heart
of many democratic changes’.5Nevertheless, although courts are increasingly
called upon to exercise a degree of tolerance towards civil disobedience,6there
is no serious disagreement that civilly disobedient protestors should not be im-
mune to criminal liability.7This is often seen as part of a political convention
whereby courts discharge their duties in upholding the law and protestors in-
dicate that they are willing to be held accountable to society for their actions.8
However, this conventional understanding is rapidly changing. With the in-
uence of the Strasbourg jurisprudence, judicial practice in the UK now recog-
nises such protest activities as a form of expression that ought to be protected on
human rights grounds. In a recent decision regarding the case of DPP vZiegler
and others9(Ziegler), the Supreme Court further found that a protest action in-
tentionally obstructing trac leading to an arms fair fell within the protection
of the European Convention on Human Rights (ECHR); such protest actions
may therefore constitute a lawful excuse under section 137 of the Highways Act
1980 if the degree of disruption can be said to be reasonable.10 The decision
that demonstrators engaging in civil disobedience may be free from criminal
responsibility raises interesting and important questions for both the law and the
practice of civil disobedience. For instance, while one might argue that lenient
treatment of such protestors may be justied on the basis of their conscien-
tious motives, one might also observe that recognising intentional interference
with the rights of others as lawful may deprive civil disobedience of its moral
foundation, as the notion entails, according to Prosch, a ‘commitment always
to suer in one’s own person rather than to harm (the rights of) others when
seeking to accomplish social reforms’.11 Whether the court is correct in con-
cluding that deliberate disruption to a highway ought to be protected as part
of free expression and assembly,and at which point cour ts should play a role in
interfering with this type of protest activity, therefore become crucial questions.
This article examines the evolution of judicial practice concerning cases of
civil disobedience and its implications for constitutional democracy. It demon-
strates that while there was initial scepticism towards this form of protest ac-
tivity, this was followed by a monumental change in judicial thinking in favour
4 Francis A.Allen, ‘Civil Disobedience and the Legal Order’(1967) 36 University of Cincinnati Law
Review 1, 3.
5RvMayer [1994] YJ No 142 (Canada) per Justice Stuart at [7]-[9];See also Morris Keeton,‘The
Morality of Civil Disobedience’ (1964) 43 Texas Law Review 507.
6 Kimberley Brownlee, ‘Penalizing Public Disobedience’ (2008) 118 Ethics 711; Wilson C.
McWilliams, ‘Civil Disobedience and Contemporary Constitutionalism: The Amer ican Case’
(1969) 1 Comparative Politics 211,226; Note, ‘Sentencing in Cases of Civil Disobedience’ (1968)
Columbia Law Review 1508.
7 See for example Abe Fortas, Concerning Dissent and Civil Disobedience (New York, NY: Signet
Books, 1968) 32; John A.Cohan, ‘Civil Disobedience and the Necessity Defense’(2007) 6Pierce
Law Review 111.
8 Piero Moraro, ‘On (Not) Accepting the Punishment for Civil Disobedience’ (2018) 68 The
Philosophical Quarterly 503, 505.
9 [2021] UKSC 23.
10 ibid.
11 Harr y Prosch, ‘Toward an Ethics of Civil Disobedience’(1967) 77 Ethics 176, 176.
928 © 2022 The Author.The Modern LawReview © 2022 The Modern Law Review Limited.
(2023) 86(4) MLR 927–950
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