3.1 The Hart-Devlin Debate. Gene Sharp[15] divides these methods into three categories: non-violent protest and persuasion, non-cooperation and direct intervention. This includes social boycotts, economic boycotts and political boycotts. [13] Thus for Gandhi civil disobedience is linked to integrity and self-respect. The accused defence was that passive disobedience is a bar to conviction. However the common denominator in all these forms of civil disobedience is that the protestors accept punishment by the state for participating in civil disobedience. The first category includes parades, vigils, picketing, posters, teach-ins, protest meetings and defiance campaigns. Protestors can engage in fasts, sit-ins, non-violent obstruction, the establishment of new social patterns, seeking imprisonment and establishing a parallel government. The implication thereof is that the legislator and the judge duties are to ascertain and assess the correctness of the common belief of the society. The law recognised as valid within society is derived from social practices such as legislation, adjudication and its administration. Civil disobedience is illegal activity undertaken to protest laws that are regarded as unjust. And a citizen that barters with such a state shares its corruption or lawlessness”. Thus certain acts tend to weaken society and this can potentially be made illegal for no society can do without intoleration, indignation and disgust.[20]. The injunction that law must have a morally defensible content begs a lot of questions. This method is used to intervene directly in a situation in order to disrupt the activities of the hierarchical institution. It also affirms the fact that civil disobedience is defiance of the law regardless of whether the act itself will be vindicated through legal process. Wish List. Hart is of the opinion that law is a combination of primary duty-imposing rules and secondary power-conferring rules. If for example parliament passes a Bill into law without having a plenary session on it or follow proper procedure the law will be invalid. [4] Thus the courts may be inclined to view civil disobedience as an attack against the judiciary and the legislature. (4th) 38 (Ont.Ct. We use cookies to understand how you use our site and to improve your experience. [6] Constitution of the Republic of South Africa,1996 section 1(c). 1.1 Introduction, 3 LEGAL POSITIVISM AND NATURAL LAW At the heart of civil disobedience is the deliberate breaking of the law aimed at bringing about a change in the law or policies of a government. [23] This is because a legal system consists first and foremost of a body of rules that people must accept and agree to. A court[28] ruled that the Nazi laws were “contrary to sound conscience and sense of justice of all decent human beings”. Society is entitled to enforce its morality in order to prevent the society from breaking apart. [27] Fuller L “Positivism and fidelity to law-a reply to Professor Hart” 1971 Harvard Law Review 630 672. One way is to smash the head of the man who perpetrates injustice and to get your own head smashed in the process. digital. Legal moralism according to him is not just for the protection of individuals but also for the protection of society. Is the validity of legislation based on its moral content or does law without justice or morality retain its status as law? The court rejected this defence as irrelevant to the court’s considerations pertaining to the “colour of the right”. To Gandhi,[11] civil disobedience is the inherent right of a citizen which he derives from the sacred duty not to participate in evil. [26] This commonality on morality from divergent theories suggest to legislators and the judiciary that laws that lack moral content, valid as they might be can be disobeyed by the society if they don’t meet the common belief.[27]. - Publication as eBook and book Instead such laws were instruments of an arbitrary and tyrannical regime which justifies civil disobedience. The second method involves discontinuing, withholding or defying certain existing social, economic and political relationships. Subjects: English Language Arts, Literature, Close Reading. [26] Hart H.L.A The Concept of Law (Oxford Press 1961) 10. In his critique of Devlin, Hart pays particular attention to Devlin’s argument that societies can disintegrate without a shared morality. It was held that “Moral convictions though deeply and honestly felt cannot transform illegal actions into legal ones; only the “rule of law” must prevail”. On the other hand, civil disobedience is at cross purpose with the law. Some engage in civil disobedience because they are of the feeling that all statutes and government policies must be premised on morality. An analytical application of these theories shall then be tested against the South African context in both the Apartheid era and the post 1994 period to see how civil disobedience and the rule of law intersect. Throughout his essay, Thoreau refers to government as a machine or a tool. With direct disobedience, a court may strike down the unjust law upon judicial review. [7] The question for determination is how the present day South African government has reacted to civil disobedience, when it is the very tool that has played a large role in bringing them to power. 4.1 Pre- 1994 [4] See Growthpoint Properties Ltd v South Africa Commercial Catering and Others (6467/2010) [2010] ZAKZDHC 38; 2011 (1) BCLR 81 (KZD); [2011] 1 All SA 537(KZD); (2010) 31 ILJ 2539 (KZD) (3 September 2010) at paragraphs 56 and 57.Pillay D, J in his judgment also stated that like all other rights, the right to demonstrate, bargain collectively, strike and picket are not unlimited and absolute. [9] Civil disobedience is a powerful force against governments because it attacks the most vulnerable tiers of all hierarchical institutions and governments. Rules of change regulate the way in which legal rules and status can be changed by individuals whilst if people want to settle a dispute in a court of law they ought to follow rules of adjudication. [21] Devlin sees a shared morality as of instrumental value, analogous to ordered government and an area in which there is both a public and private interest. Stated differently, “Don’t tyrannies have working legal systems?” And if citizens decide to disobey such laws will they be punished by the judiciary. He observes that legislation of any civilised community should aim at preventing harm[22] to others and rejects the notion that legislation should protect the essential institutions of society. - It only takes five minutes 120, [17] See R v Drainville (1991) 5 C.R. Excerpts from Civil Disobedience 1849 Henry David Thoreau Writer, philosopher, and naturalist Henry David Thoreau was associated with the literary movement called New England Transcendentalism. The legal discourse centred on the validity of Nazi laws which to some extent were similar the Apartheid laws in South Africa. 13, [18] Cane P “Taking law seriously: starting points of the Hart/Devlin debate” 2006 Journal of Ethics 21-51, [22] Forster PG “Functionalism and the Devlin/Hart controversy” 1986 volume 37(1) The British Journal of Sociology 74-87. [24] Kroeze IJ and Smith SR Study guide Legal Philosophy LJU4801 (Unisa Pretoria 2012) 59. Book Description: Walden And On The Duty Of Civil Disobedience by Henry David Thoreau, Walden And On The Duty Of Civil Disobedience Book available in PDF, EPUB, Mobi Format. Also in R v Drainville [17] Judge Fournier in his reasons emphasised that civil disobedience reflects an attempt by protesters to “arrogate” the powers of judicial office to themselves and this represents a dangerous slope towards anarchy.