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10th May is a coffee meeting at Bon Amici, 6.30 pm.

Reading for the meeting, 17th May, 2009 is about civil disobedience.

Do we have a right to disobey an unjust law?
'Therefore when Tao is lost, there is goodness.
When goodness is lost, there is kindness.
When kindness is lost, there is justice.
When justice is lost, there is ritual'
-Tao Te-Ching
(in Billington, 2003).

Introduction
Normative, or positivist, man-made law, is an imperfect institution even if a liberal democratic utopia could exist (Raz, 1979). Natural law is God(s) given laws but lacks scientific rigour and is rejected due to it's paternalistic nature. Natural law has changed to attribute an internalised individual and collective conscience. So when natural law indicates that a normative law is unjust, then it cannot be law at all, lex injusta non est lex. When legal means to change an unjust law fail, then justice may only be achieved through civil disobedience.We are then morally, not legally, permitted to disobey an unjust law. In many situations, it is obligatory to disobey unjust laws. Civil disobedience is on the slippery slope towards revolution. Revolution however can also be justified if it is to correct an unjust law or system of laws. Participatory democracy is a positive model of anarchy that can balance normative and natural laws.

Discussion.
Liberty.
Do we have a right to disobey an unjust law? We have a right to do anything we want, so called negative liberty or mans natura (Schell, 2004; Berlin, 1969; Billington, 2003 p. 229). In order to live in society, we need to respect the rule of law, for without law there will be anarchy, although anarchy does not mean a lack of order (Storing, 2002; Layton, 2006). It is our social contract to accept law, employ legislators, elect politicians and install justice systems for inclusion in society (Rouseau, 1762). There are many benefits to living in societies which outweigh frustrated private wants and cooperativism through collective action in society have been an evolutionary advantage for humans (Layton, 2006, p. 6) . We do not have a legal right to break a law and the criminal justice systems have the role of providing consequences for illegal behaviour (Waldron, 1999). We have a moral obligation to obey a just law, positive liberty, even if this means restricting some of our negative liberty, although Raz argued that there is no obligation to obey at all and we can only choose to obey or not (Hart, 1963; Schroeder, 2007; Berlin, 1969; Green, 2003; Perry, 1988; Raz, 1979). For example, I may have the negative liberty to drive my car at any speed I prefer. I may choose to give up this liberty to allow other people to drive safely on the road too. I avoid legal and moral consequences by following the rule of law and in this case the normative legal system and natural legal moral position are in agreeance. In the same way, I have a moral right and responsibilty to disobey an unjust law as moral responsibility has ascendency over normative laws. The hierachy of responsibilities is reflected in the quote from Tao Te-Ching above (Greenawalt, 1989; Billington, 2003).

Legal Means.
Sometimes one can lobby, protest within legal boundaries, write letters to politicians, use media to protest or stand for election on specific issues. Voting however, is a very slow process for reform, occuring every three years or so, and most people vote on party lines, rather than one specific issue (Schroeder, 2007). Political parties are swayed by majority votes so they do not repsond to minority groups (Singer, 1973; Devlin, 1965). Political parties are swayed by their benefactors such as churches and large enterprises, so moral issues may not be represented, may be underrepresented or masquerade as other issues to induce fear. For example, most people wish for peace and religious freedom, but they are given information that induces fear about religious domination by Muslim religious extremists, thus allowing war, extreme violence and torture, discrimination and global hegemony, directly opposed to majority moral wishes (Chomsky, 2003; 2008). In such cases, the majority does not realise that the government, or any ruling dictator cannot act without their tacit support.
Switzerland has a model of participatory democracy, unlike other democracies, in that every eligible voter votes on every legislative decision (Fossedal, 2002). Although this seems utopian, the reality is that it is difficult to find majority approval for legislative changes, even on moral grounds, and changes occur more slowly than in other representative democracies. Laws become more idiosyncratic when dictators deny participation or pretend to allow democratic rights as seen in Zimbabwe with President Mugabe (Dixon, 2005).
Although the judiciary may interpret laws using a moral lens and have discretionary powers, they are limited by precendent and the meaning of laws. Leaving decsions to the judiciary may be unethical and also limit majority interpretation of the law. There is no guarantee of moral action in the judiciary such as was seen in recent legal action in Australia to protest Japanese whaling within the Antarctic exclusion zone (Anton, 2008; Humane Society International Inc v Kyodo Senpaku Kaisha Ltd, 2005). When legal forms of protest have been to no avail or do not seem possible, civil disobedience, conscientious objection or revolution may be the best solution. It may be obligatory to disobey, as to do nothing implies consent and allows moral injustices to occur (Raz, 1979, p. 262).

Civil Disobedience.
The conditions of civil disobedience require that we have choice as to whether we will follow natural or normative laws (Thoreau, 1854). Civil disobedience is an internal process that respects the rule of law as sovereign and aims to change the law to become morally right but clearly gives us no moral right to act (Bix, 1996; Brownlee, 2007; Rawls, 1971; Raz, 1979). Normally the unjust law is the one that is transgressed, but sometimes other laws need to be broken for the protest to have any power (Suber, 1999). For example, refusing to follow up conscription orders to fight in Vietnam, or to hand over Jewish people to the Gestapo breaks the laws that are seen as unjust. Blocking the road with a mass of people; burning flags; smashing shop windows; chaining yourself to a bulldozer to stop logging or going on a hunger strike in prison still protests against unjust laws but breaks other laws. Civil disobedience, which has been in practice throughout recorded history, is usually defined as non-violent protest, which is the most powerful approach (Sharp, 2006; Gandhi & Dalton, 1996; Anderson, 2007; Rawls, 1966; Brownlee, 2007; Schell, 2004; Suber, 1999). It is not really possible to inflict non-violent protest as some-one's rights will inevitably be attacked so we can only talk of relatively less violent disobedience (Morreall, 1976). Civil disobedience may begin with one protestor, like Thoreau, but without a groundswell of support, is likely to fail (Thoreau, 1854; Schell, 2004). It therefore needs to be public and punishment for breaking the law is expected as it creates a powerful message (Suber, 1999). When Thoreau refused to pay immoral taxes and Gandhi refused to carry a discriminatory identification card in South Africa, they were jailed. They did not resist, in order to invoke sympathy of the majority, promote the moral high ground and create a situation where the government and police action were made to look heavy handed and guilty. The passive aggression worked well for Gandhi who never resisted or became angry even when beaten by police.
Some people involved with rallies and civil disobedience are not there to change unjust laws but because it is a social occasion, they meet their friends there, make new friends, enjoy confrontation with the police or enjoy the notareity. They may not have the same moral high ground or rights to disobey an unjust law. If their numbers however increase the protest strength and overturn unjust laws then they may be justified. Not everyone has the same sense of moral obligation (Waldron, 1999).

Revolution.
Sometimes nonviolent protests, despite best intentions, are taken over by mob rule, provocation by authorites or by a minority who agitate for violence and then protests become violent disobedience as experienced by Gandhi and Martin Luther King Jnr (Anderson, 2007; Brownlee, 2007; Schell, 2004). Some disobedience is orchestrated to be violent from the beginning as Castro and Guevara clearly planned and is the moral equivalent of war with the authority (Harris, 1939; Schell, 2004; Guevara, 2006). Sometimes breaking an unjust law is a revolution as Marx predicted (Billington, 2003, p 238). In revolution, there is widespread rejection of law and the rule of law. Many times the anarchy that follows revolutions is more unjust than the original regime, as was seen following the French Revolution and many coups in South America. A revolution can be planned and orchestrated with new just regimes ready to follow so that a peaceful, popular rule of law is instated, but these are rare instances (Guevara, 2006).

Historical Justification.
Some revolutions or civil disobedience are successful and are often recorded as justified, for example the Indian movement for independence led by Gandhi; French Revolution for majority rights; Portuguese Carnation Revolution and Spanish Civil War for independence from fascist dictators; gay rights, civil rights, black rights, environmental protection, and the Resistence movements in World War Two. They may be justified in retrospect because they were to correct unjust law or because might equals right. Some protests and revolutions have not been so succesful and some history has recorded them as not justified, such as Tamil, Basque, Tibetan Separatists and Taliban jihad. History tends to change its opinion of moral rights however, for example Greenpeace whaling and anti-French nuclear testing at the Bikini Atoll protests; G8 riots and the Builder's Labourer's Union Green Bans which were illegal and unpopular in majority opinion are now seen as morally justified. Sometimes civil disobedience and revolution is required, but it does not happen such as in Zimbabwe's current humanitarian crisis, China's torture of Falun Gong devotees and recent changes to law in Afghanistan legalising rape with marriage. How can we tell if we are morally obliged to obey a law or not or whether we have moral rights or obligations to disobey?

Natural laws
Morally right law was originally described as Natural Law, given by God (s) (Westerman, 2007; Bix, 1996). The Ten Commandments and the Koran are examples of this Natural Law. These laws do not help us however with modern moral issues such as environment protection, women's rights, gay rights and racial discrimination.They were written in a time when slavery was normal and women disenfranchised. There is also much doubt that they are really written by a God. They condone stoning an adulterer to death, female circumcision and forbid contraception, condoms to reduce the risk of HIV, abortion, stem cell research or divorce becomes more problematic when countries have no separation of religion and government (Warnock, 1987). This form of paternalism, although still popular, does not seem logical or acceptable to many people.
When Royalty took divine right from the God(s), there was some nonviolent protest that Natural Law was being corrupted by avarious men, such as Ovid's protest at Augustus and Beethoven's protest towards Napolean's metamorphisis ( Ovid, Beethoven). Fuller describes how difficult it is for this royal form of lawmaking (Fuller, 1964).
Kant wrote that there was a moral imperative, laws that were morally right, above Normative laws but that they were indefinable, unwritten and possible God-given (Kant, 1785).This seems true but does not help us if we cannot agree on what are the moral imperatives. Utilitarains were more pragmatic. As law was required for the benefit of the people, decisions that gave the best outcome for the most amount of people, a hedonic calculus of need, was the morally correct one ( Bentham, 1789). Mills debated that Happiness was the commodity that could be caluclated for the greater good and that law was separate to morality (Mills, 1859, Hart, 1963). Rights trump utility however with regard to Natural Law (Suber, 1999). This position, however, implies that we have a right to enforce morality which is not morality at all. It implies majority rule and many immoral laws relate to minorty rights such as racial, religious, gender and cultural differences (Hart, 1963; Mill, 1859, p.5). Hume felt that emotion was the motivating force that could differentiate a moral issue and a just position, rather than logical analysis alone (Hume, 1978). Emotion seems to be the major catalyst for civil disobedience and revolution, so he may be right. Emotion, such as care, a feminist ideology, may help understand moral justification for breaking an unjust law but this divisive approach fails to understand that humans integrate thought, emotion and action as a fluid and dynamic whole.

Normative laws.
Normative laws follow the scientific revolution, such that logical scientific approaches would solve the undefinable natural law. However this has not been realised and the complexity of human civilization cannot be codified with a consistent moral sense. Many laws become outdated and some are merely reactionary, such as a recent law that forbids people from congregating together if they want to ride motorcycles (Hansard, 14.3.2009). Normative laws are easier to follow, as they are written, although many are buried in years of precedent and many are vague and open to interpretation. Who makes these laws? Although it is clearly politicians who enact legislation, and there are no qualifications required to be elected, there is a complex interplay of advisors, lobbyists, commercial interests, minority groups, churches, majority voters, the media, the police, the judiciary and extra-judicial law enforcers (Billington, 2003, p228; Green, 2003). There are an increasing number of laws enacted, that rapidly change so that most people are not aware of them. The laws are often vague and interpretation becomes a problem, the interpetative theory of law (Stavropoulos, 2003). These laws cannot deal with individual instances in a moral and just way. By allowing police and judicial discretionary powers, we may make them more moral but less equitable (Himma, 2006). These laws can only be tested in court when you break them, so civil disobedience is required to test these laws. If there is a liberal democracy then there is a legal method of changing unjust laws (Mott, 2006). If there is a mostly just system of laws one has to weigh up the destruction of laws in disobedience as a moral right when systems do not provide for legal challenge in a timely fashion (Bix, 1996; Chomsky, & Foucault, 1971).
These laws are often power ploys by governments, for example in the United States of America the majority of the people do not want sanctions with Cuba, invasion of Iraq, Vietnam and Afganhistan, but the government consistently acts paternalistically against majorty opionion asserting the legal right to govern government de jure ( Hammerstrom, 2002; Billington, 2003, p 238; Chomsky, 2008). The church is still a powerful controller of normative law, sometimes parading as natural law, for example emergency laws in New South Wales, Australia that forbade freedom of speech concerning negative ideas about Catholocism, during the Pope's visit in 2008 (World Youth Day Amendment, 27th June, 2008; Tiernan, 2008). This was despite participatory democracy in a liberal democractic country. It has been debated that normal liberal democracy is civil disobedience by the government in balance with civil disobedience by the people to create a workable balance. A grass-roots democracy, a Rawlsian distributative anarchy, accommodates civil disobedience as part of the normal legal system (Regan, 1986; Layton, 2006). Particularly with good communication and connectivity, as seen with Web 2.0 Internet dialogue, true anarchtic or anarcho-syndicalist democracy can occur (Anderson, 2007; Chomsky, & Foucault, 1971). The community of Mondragon provides a working model of anarchy with its moral base in care, community cooperation and equality (Mondragon). On the whole, these utopian dreams, just like Plato's philosopher kings are clearly not realistic (Plato; Moore, 1516; Billington, 2003, p.242). For example, when there are no rules, such as in Fiji currently, the uncaring anarchy of Somalia, dictatorships in Zimbabwe, China and North Korea, we cannot see the process of just law related to normative law (Layton, 2006; UN News Centre, 2009). We do not get a choice where we live and what political system we choose and political refugees seem to have less rights than other people it seems (Feinberg, 1979). Normative law then is at best an imperfect science.

Natural laws and Participative Democracy.
We then come full circle back to Natural Law. This time, without it being constructed as God-given, but individually motivated by inner conscience. When we have our basic needs met, we have capacity for moral thinking and behaviour (Maslow, 1943). We all have an inner sense of what is right and wrong and 'over himself, over his own body and mind, the individual is sovereign' (Mill, 1859, p. 11). We have a capacity for empathy for other people's needs and rights and we have sympathy for those who lack equal living standards to ourselves (Storing, 2002). This collective morality is a normal part of human development and although it is culturally based, there is remarkable similarity of content and context ( Piaget, 1965). This emotional, intellectual and moral capacity is variable such that some people will continue to rely on others to provide frameworks, such as religion, to work from. Few people study moral philosophy and it is not mandatory education even although we have capability for mass education. Effective Natural Law relies on the concept of an educated participative democracy which is constantly learning and changing (Habermas & Calhoun, 1985; Devlin, 1965, p. 95). Some people think long and deeply about their philanthropic and moral responsibilities, but do not always act on this knowledge. Most people can extend their moral sense to their family and sacrifice their own needs for their family. Most find this difficult when relatedness of family, community, geography, culture and religion becomes more distant. It is much easier to be empathic about the next door neigbour's lack of food than someone living on a mission in central Australia, or Sudan and maybe less for a jihadist in Afghanistan. Moral responsibility comes at cost to self and family. This Natural Law is therefore inconsistent but it extends beyond individual capacity to collective morality and our need to obey law is related to our contract with other citizens, not with the government (Feinberg, 1979).
Natural law can be practical because it balances needs (Finnis, 1980). In this way deep green philosophy can express a collective moral responsibilty to the whole universe above individual wants. Many of the environmental initiatives have developed from grass roots democracy with internalised individual and collective conscience. Many of these moral, natural laws have been acted upon well in advance of normative legislature. For example, most people were recycling water, garbage, becoming vegetarians, driving electirc cars or using public transport and using solar energy sources well before government legislation. Many companies were philanthropic before Corporate Social Responsibility was enacted in the European Union ( Waldron, 1992; Cadbury,2002; European Union, 2001). Some would still argue that this is government and welfare responsibilty while others see philanthropy as obligatory behaviour (Friedman, 1970, Freeman. 1994).
The extent of civil disobedience and willingness to explore moral philosophy, research and discover needs gaps and act for the good, will depend on the individual and the cost benefit of the activity. There is then fallability and inequality in Natural Laws too. Legal ethical positivism divorces ethics and moral institutions from rules of law to be in critical opposition and balance and legal positivism describes law as practical contractural arrangments based on social needs (Campbell, 1996; Green, 2003).
Morally right behaviour is a balance then of individual and collective minds; Natural and Normative laws; emotions, thoughts and actions; obedience and disobedience and sometimes revolution. Civil disobedience breaking an unjust law, is the higher moral position. To do nothing is to be complicit with an unjust law and even to condone it (Somerville, 1971; Schroeder, 2007). Leaders rely on obedience for their power as there is a social contract and a moral obligation to obey just laws (Schell, 2004 ; Fuller, 1958). Although unjust leaders may limit choices and have the power to inflict harsh penalties and consequences, natural law allows, sometimes demands, that you disobey an unjust law (Mott, 2006; Habermas & Calhoun, 1985). The power is then with the people for truth, self-determination and democracy ( Schell, 2004; Schroeder, 2007 ; Sharp, 2006; Storing, 2002; Campbell, 1994). To do otherwise would be less than human and deny our basic rights as citizens (Anderson, 2007; Waldron, 1992). This process could 'signal the end of history' as Fukyama said, as there would be no more war, although this is probably unrealistic (in Schell, 2004).

Conclusion
Natural Law was the original position for humans to understand their moral obligations. As communities have matured, the scientific revolution overtook moral imperatives and people became designers of their own moral destiny. The various problems with this Normative Law has led to a renewal of Natural Law, but this time situated within the individual and collective unconscience rather than God(s) given. There is a separation of Natural and Normative law such that Normative law is not based on morality (Green, 2003 ). More situations have ocurred when people have broken unjust laws because they are not perceived as real law. They have suffered for their actions. Grass roots, liberal and participatry democracy advance a positive anarchtic system that will work when people care for each other and respect individual rights and diversity. There is a large variation of moral capacity and humans may be ill eqipped and poorly educated to handle the new responsibilties. If we don't systematically challenge and disobey unjust laws we do not act responsibly.

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Case
Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2005] FCA 664.

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World Youth Day Amendment, 27th June, 2008, NSW.

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