Civil Disobedience and the rule of law

1. Introduction

The Method of choosing the HKSAR Chief Executive has been discussed for a long period. Harmonizing to The Hong Kong Special Adminstrative Government ( 2015 ) , the NPCSC ( TheStanding Committeeof the National People ‘s Congress ) declared the “Decision of the Standing Committee of the National People ‘s Congress on Issues Relating to the Selection of the Chief Executive of the Hong Kong Special Administrative Region by Universal Suffrage and on the Method for Forming the Legislative Council of the Hong Kong Special Administrative Region in the Year 2016” in 31.8.2014. Harmonizing to Occupy Central with Love and Peace ( 2015 ) , the members of OCLP ( Occupy Central with Love and Peace ) reject to subject the determination of NPCSC, and they believe that HKSAR authorities should present a receptive attitude towards civil nomination. Occupy Central began in 2013 for the desire of democracy, and evolved into Umbrella Revolution in 26.9.2014.

First, I will exemplify the definition of civil noncompliance and regulation of jurisprudence. Second, I will exemplify the statement that support civil noncompliance is non compatible with the regulation of jurisprudence. Finally, I will explicate in what extent civil noncompliance is incompatible with the regulation of jurisprudence in Hong Kong.

2 ) Definition of civil noncompliance

Harmonizing toRawls ( 1999 ) , in constitutional theory, civil disobediencecomposed in three parts. First, definition ofcivil noncompliance is different and separate from misdemeanors of jurisprudence, because civil noncompliance is purposes to raise public concern in some unfair issue, but misdemeanors of jurisprudence do non. Second, civil noncompliance will settle after the unfair issue is justified. Finally, civil noncompliance has a function in constitutional system and the civil disobedient demand to account for protest.

Harmonizing toRawls ( 1999 ) , civil noncompliance has four characteristics, public, non-violent, painstaking andjustifypolitical rules.

First, public refer to civil noncompliance is a public act, it engage openly with just announce to political authorization and is non covert or close.

Second, non-violent refer to themanifestationofcivil noncompliance, it expresses noncompliance to jurisprudence with limitloyalty. The fidelity to lawset upan image that thecivil disobedienceispolitical painstaking and intends to raise the public’s sense of justness.

Third, painstaking refer to political act that contra to jurisprudence with purpose of altering the recent jurisprudence or policies. Civil disobedient Acts of the Apostless in thismanifestationaimto addressthe sense of justness of society, but non for personal involvement.

Finally, warrant political rules refer to civil noncompliance is non in sense that it address tomajoritypolitical power, besides is aim to steer and warrant political rules.

3 ) Definition of regulation of jurisprudence

Rule of jurisprudence is viewed as positive thing and represent justness and good ( Lo & A ; Chui, 2012 ) . However, Moller ( 2014 ) said: “the construct of the regulation of jurisprudence is extremely complex and basically contested.” Finally, Tamanaha carried out a method to separate different definitions of regulation of jurisprudence into two bulk approaches- formalist and substantive.

In formalist attacks, one of the descriptions of regulation of jurisprudence is A.V. Dicey version. Dicey ( 1959 ) mentioned three rules of regulation of jurisprudence:

“No adult male is punishable or can be legitimately made to endure in organic structure or in goods except for a distinguishable breach of jurisprudence established in the ordinary legal mode before the ordinary tribunals of the land.”

“No adult male is above the jurisprudence ; every adult male and adult female, whatever may be his or her rank or place from the premier curate right down to the revenue enhancement aggregator, is capable to the ordinary jurisprudence of the kingdom and conformable to the legal power of the ordinary tribunals.”

“Each man’s single rights are best protected under Common Law instead than a formal Bill of Rights.”

For substantial attacks, substantial theories mentioned that the regulation of jurisprudence must include formalist attacks component. Harmonizing to Moller ( 2014 ) , three more elements added in substantial attacks, they are single human rights ( belongings, contract, privateness, liberty ) , rights of self-respect or justness ( helps single develops ability to go self-determining ) and societal public assistance ( subtantive equality ) .

2. Civil noncompliance is non compatible with regulation of law- statement one

Civil noncompliance is non compatible with regulation of jurisprudence because the impression of regulation of jurisprudence is concern about the beginning of jurisprudence, balance of political power and single rights.

Harmonizing to Moller ( 2014 ) , there are four dimensions of regulation of jurisprudence, form ( formal legality ) , countenances and control ( cheque and balance between authorities and citizens ) , beginning of jurisprudence and people concent ( Sovereignty of the people ) and substance content ( Indiviaual rights ) .

Harmonizing to Brownlee ( 2013 ) , the purposes of civil disobedient is to reprobate peculiar unfair issue and seek to raise the awarness of public in sense of justness. That imply civil noncompliance merely occur when unfair issue occur in society, and unfair issue ever include the resistance between authorities and citizens, this thought is alreadly include in one of dimension of regulation of law- countenances and control, when unfair issue policy occur, people can keep the authorities.

And the “unjust issue” how to specify? Harmonizing to Brownlee ( 2013 ) , civil disobedient addressesthemselves to bulk sentiment and rule of justness. This is besides include in one of dimension of regulation of law- beginning of jurisprudence and people concent.

Therefore, civil noncompliance is non compatible with regulation of jurisprudence.

3. Civil noncompliance is non compatible with regulation of law- statement two

Others ground that civil noncompliance is non compatible with regulation of jurisprudence is regulation of jurisprudence is non wholly equal to obey the jurisprudence. The construct of regulation of jurisprudence is closely linked to societal contract theory, harmonizing to McPherson ( 1980 ) , in societal contract theory, if authorities against citizen’s involvement, citizens can subvert and put in a new authorities. It shows that regulation of jurisprudence is non wholly equal to obey the jurisprudence. When there is unfair issue and policy that against people involvement, people can contend back, civil noncompliance is one of the methods to against these unfair issue and policy.

Harmonizing to United Nation ( n.d. ) , the construct of regulation of jurisprudence is extremely associated with the impression of justness. It imply that when the jurisprudence can non demo the impression of justness and when the jurisprudence is unfair in bulk sentiment, civil noncompliance is allowed to warrant the unfair circumstance and it is non compatible with regulation of jurisprudence.

Besides, one of the characteristics of civil noncompliance is justification of political rules and this rules refer to civil noncompliance is non in sense that it address tomajoritypolitical power, besides is aim to steer and warrant political rules.

Therefore, civil noncompliance is non compatible with regulation of jurisprudence.

In the undermentioned paragraph, I will discourse approximately in what extent civil noncompliance is compatible with regulation of jurisprudence in Hong Kong.

4 ) In what extent civil noncompliance is compatible with regulation of jurisprudence in Hong Kong.

As I mentioned before, civil noncompliance contain four characteristics, and it is non compatible with regulation of jurisprudence. But in Hong Kong, civil noncompliance is compatible with regulation of jurisprudence in Hong Kong in some state of affairss.

The first state of affairs is the authorities define regulation of jurisprudence equal to obey the jurisprudence, regulation by jurisprudence or regulation by work forces, falsify the impression of regulation of jurisprudence. These are different construct of jurisprudence, if the functionary in Hong Kong use the distort version to judge the civil noncompliance, than civil noncompliance is compatible with the official “rule of law” .

If the Hong Kong authorities defines obey the jurisprudence, regulation by jurisprudence or regulation by work forces as regulation of jurisprudence, the distort version of regulation of jurisprudence will non include the impression of justness, therefore the action to warrant political principles- civil noncompliance will specify as compatible with the official “rule of law” .

Second state of affairs that civil noncompliance is compatible with regulation of jurisprudence in Hong Kong is civil noncompliance does non follow the four rules. Such as violent action of civil disobedient, civil noncompliance for personal involvement, etc. These misdemeanor of the rule will do civil noncompliance same as interrupting the jurisprudence. When civil noncompliance can non stand for the impression justness, it is merely interrupting the jurisprudence.

4. Decision

In decision, civil noncompliance that follow four rules, public, non-violent, painstaking andjustifypolitical rules is non compatible with regulation of jurisprudence in normal state of affairs. Because regulation of jurisprudence is non merely accent obey the jurisprudence, it besides include the impression of justness. These four rules of civil noncompliance guarantee that the action is associated with justness.

However, in some state of affairss civil noncompliance is compatible with regulation of jurisprudence. That is when regulation of jurisprudence is non the original regulation of jurisprudence, and civil noncompliance is non the original civil noncompliance.

When the authorities functionary specify the regulation of jurisprudence as obey the jurisprudence, regulation by jurisprudence or regulation by work forces, so regulation of jurisprudence will loss the impression of justness, than the action represent justice- civil noncompliance will be defined as compatible with regulation of jurisprudence.

When the civil noncompliance do non follow the four rules, the action will besides loss the impression of justness, therefore it is non civil noncompliance any more.

Mention:

Brownlee, K. ( 2013, December 20 ) .Civil Disobedience.Retrieved March 26, 2015, from Stanford Encyclopedia of Philosophy: hypertext transfer protocol: //plato.stanford.edu/entries/civil-disobedience/ # FeaCivDis

Dicey, A. V. ( 1959 ) .Introduction to the survey of the jurisprudence of the fundamental law ( tenth erectile dysfunction. ) .Basingstoke: Macmillan.

Lo, S. H. C. , & A ; Chui, H. H. ( 2012 ) .The Hong Kong legal system.Singapore: McGrawHill.

McPherson, C. ( 1980 ) .John Locke Second Treatise of Government.Indianapolis and Cambridge: Hackett Publishing Company.

Moller, J. ( 2014 ) .THE RULE OF Law: Definitions, Measures, Patterns and Causes.Basingstoke: Palgrave Macmillan.

Occupy Central with Love and Peace ( 2015 ) .10 Basic Facts about OCLP. Retrieved March 15, 2015, from Occupy Central with Love and Peace Official Page: hypertext transfer protocol: //oclp.hk/index.php? route=occupy/eng_detail & A ; eng_id=12

Rawls, J. ( 1999 ) .A Theory of Justice, Revised Edition.Cambridge: Harvard University Press.

The Hong Kong Special Adminstrative Government ( 2015, January 7 ) .Decision and accounts of the NPCSC. Retrieved March 15, 2015, from Method of Choosing the Chief Executive by Universal Suffrage: hypertext transfer protocol: //www.2017.gov.hk/en/decision/index.html

Tamanaha, B. ( 2004 ) .On the Rule of Law: History, Politics, Theory.Cambridge: Cambridge University Press.

United Nation ( n.d. ) .United Nations Rule of Law.Retrieved March 27, 2015, from United State: hypertext transfer protocol: //www.unrol.org/article.aspx? article_id=3

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