Civil disobedience as constitutional patriotism

Joxerrarnon Bengoetxea, Ph D Profesor Titular of Jurisprudence, University of the Basque Country, San Sebastian, Spain

Juan lgnacio Ugartemendia Profesor Asociado of Constitutional Law, University of the Basque Country, San Sebastian, Spain

1 INTRODUCTION

‘One afternoon, near the end of the first summer, when I went to the village to get a shoe from the cobbler’s, I was seized and put into jail, because, as I have elsewhere related, I did not pay a tax to, or recognise the authority of, the state which buys and sells men, women and children, like cattle at the door of its senate-house. I had gone down to the woods for other purposes. But wherever a man goes, men will pursue and paw him with their dirty institutions, and, if they can, constrain him to belong to their desperate odd-fellow society. It is true, I might have resisted forcibly with more or less effect, might have run ‘amok’ against society; but I preferred that society should run ‘amok’ against me, it being the desperate party. However I was released the next day, obtained my mended shoe, and returned to the woods in season to get my dinner of huckleberries on Fair-Haven Hill”

It is interesting to compare this idyllic passage from Thoreau’s Wulden to the situation in which many so-called ‘insumisos’ find themselves in Spain generally and more particularly in Euskadi (the Basque and Navarrese autonomous communities in Spain). lnsumisidn obtains when a young man refuses to comply with the compulsory military service and with the alternative social service scheme in force in Spain;2 the police arrests him and he is prosecuted and often sentenced to up to two years imprisonment. No question of him returning to the woods to get his dinner of huckleberries.

In spite of political troubles, terrorism and violence, the Basque Country has the greatest percentage of conscientious objectors and/or insumisos in Europe, reaching almost 50% of the young men of military age. The motives behind such massive defection are not always the same, and perhaps not always

* The authors wish to thank Prof Dr Heike Jung and Anthony Wheelan for useful comments. 1. Henry D Thoreau Walden (Princeton, 1971) p 171. 2. It is also possible to find instances of indirect insurnisibn by (not so young and not necessarily male) citizens ie where a town or city mayor refuses to provide the military administration with the list of young men of military age who reside in the council of her or his jurisdiction. Indeed, there have been some such cases recently (1995) in the Basque Autonomous Community and in the Autonomous Community of Navarre.

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noble, just as the official legal responses to this phenomenon are neither uniform nor always noble,3 but the figure does show that the Spanish military establishment has a very low level of popularity or legitimacy in this region.

Spanish penal law criminalises such disobedient cond~ct ,~ popularly called insurnisidn, with sentences of eight to 12 years of absolute incapacitation, ‘inhubilitucidn ubsolutu’ (from public service and honours, and even from the right to be elected) plus a ‘fine’ of 12 to 24 months.

Until November 1995, the law on the matter was contained in Art 2, para 3 of the Ley Organicu 8/1984, (26-12-1984) as amended by Ley Orgcinicu 141 1985 (9- 12-1985) which provided that whoever, having been declared exempt from military service as conscientious objector, refused to serve in the substitute social service would be subject to ‘lesser imprisonment in its medium or maximum degrees’ and to ‘absolute disqualification from public employment during the time of the sentence’.

The draft of the present Criminal Code distinguished between the objector/ defector who simply does not comply with the military service but has not been declared a ‘conscientious objector’ (jail sentence from six to 24 months) and the ‘conscientious objector’ proper who refuses to comply with the alternative social service (for whom the sentence was to be a fine plus ten to 14 years disqualification from public employment or from any public benefit such as a scholarship or a grant).

The recent Criminal Code of 1995, often referred to as the first Criminal Code of Spanish Democracy, distinguishes between three situations:

1.

2.

3.

the person who has been called to a given post or service in the army but fails to comply for at least one month; the person who has already joined the service in the army but deserts for 20 consecutive days or 30 days; and the objector who has been ascribed an alternative social service but refuses to comply.

The same sentence can apply to the three situations: absolute disqualification from eight to 12 years plus a time-sentence of 12 to 24 months. The new penal code provides ( A r t s 50-53) that ‘time-sentences’ will be converted into ‘money- sentences’ at a rate which ranges from PTA 200 (€1) to 5oooO (€250) per day. If the fine is not paid, it can be converted into a ‘prison-sentence’ at a rate of two ‘fine-days’ per ‘prison-day’ . This prison sentence can take the form either of a ‘weekend-mest’ or, provided the offender agrees, of social work.

But Basque society at large sees no point in the penalisation of insurnisidn or in running amok against insurnisos. Many political parties have openly called for a decriminalisation of insumi~i6n.~ An important number of holders of the

3. Indeed, we are aware that some insumisos would be willing to serve in a Basque army. 4. Crimes related to the breach of the duty to comply with the alternative social service (section 3, Chapter IV, Title XXI, Book II, Criminal Code of 10/95, of 23 November 1995). 5. During the parliamentary discussion of the draft Penal Code, Izquierda Unida, Partido Nacionalista Vasco, Coalici6n Canaria, Esquerra Republicana de Catalunya, Eusko Alkartasuna, called for decriminalisation, and on 19 April 1996, the Basque Parliament has called for the decriminalisation of insumisi6n and has publicly supported the mayors and local councillors who have refused to cooperate with the Spanish Defence Ministry.

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major legal professions - lawyers, prosecutors, judges - sometimes see themselves in a difficult personal and social tension where the obeying policy reasons associated with the requirements of the law and the ‘law-jobs’, pull in one direction, and their consciences, and social attitudes, inspired by reasons of principle, pull in the opposite direction. Public prosecution reluctantly takes the necessary steps to prosecute, and when it does so, it follows strict guidelines from the Madrid headquarters; and even then, often calling for the application of the minimum sentences. The panels of judges, which see themselves impelled to impose a sentence, often penalise the insumiso with the mildest possible sentence, and in some cases, insumisos have been cleared of charges or acquitted altogether. Yet, on other occasions sentences have been severe.

We therefore find a situation where the law - understood in a large sense as including the norms of the legal system and the agents operating with and shaping the law - has an ambiguous, ambivalent position towards a particular instance of non-compliance with it, viz, civil disobedience.

However, in this paper we do not wish to discuss all the details of this insumisidn phenomenon, nor the important debates that are going on around it. Indeed, it is a social phenomenon worth studying from different branches of the law and most notably from jurisprudence, criminal law, constitutional law, the sociology of law and criminology. We only wish to take insumisidn as an interesting illustration of a more general question which is that of the legal status of civil disobedience.

We argue for a particular conception of ‘civil’ disobedience as ‘constitutional’ disobedience. This we shall do by beginning with a working concept of civil disobedience (section 2). A major distinction will next be drawn between pre-constitutional civil disobedience and constitutional civil disobedience (section 3), a conception which brings together different normative discourses: moral, political and legal.

However, in order to see their relationships in a clearer light, these different levels of practical reason can be analysed independently of each other (section 4), with special emphasis on the legal-constitutional discourse (section 5) where the question ‘is there a legal right to disobey the law?’ branches out into the moral and/or political question ‘are there any circumstances in which the duty to obey the law can give way to the freedom of conscience or other freedoms?’ and into the constitutional question ‘can the exercise of certain fundamental rights reach the point where certain legal obligations are breached?’ This analysis calls for a discursive approach.

Such analysis and the conception of civil disobedience as constitutional disobedience lead us (section 6) to the postulation of the following paradox: that, although civil disobedience can, in certain limited circumstances be seen as a justifiable action or as an extreme form of exercising a fundamental right, nevertheless a particular act of disobedience may itself still be the subject of a penalising response from organised society. Further, when this happens, when society ‘runs amok’, to quote Thoreau again, against the constitutional patriot, civil disobedience attains its maximum symbolic potential.

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2 A WORKING CONCEPTION OF CIVIL DISOBEDIENCE

When speaking about disobedience we refer to a deliberate moral and/or political choice not to obey or not to comply with ‘valid’ norms enacted by a ‘competent’ public authority. It can consist in a positive action infringing some prohibition or in a breach of, or non-compliance with, a given duty where such prohibition or such duty are clearly and unambiguously provided for by positive law (in an interpretative sense of law and allowing for the necessary defeasibility conditions).

Disobedience thus defined can operate in a setting or framework where there is a constitution or outwith such a setting or framework. Pre-constitutional disobedience can occur in the absence of a constitutional framework or in a constitution-less society, eg a resistance to tyranny? We consider this distinction to be crucial. Not only is it based on the constitution as the legal consolidation of democratic consensus and as the primary legal norm, but it also contextualises civil disobedience in a historical framework, ie the birth of constitutionalism. The existence of a constitutional framework thus defines the parameter of civility, of what makes disobedience ‘civil’, and becomes part of the concept of ‘civil disobedience’.

Disobedience within a constitutional framework can itself be constitutional or anticonstitutional. Consrirurional disobedience presupposes, on the part of the ‘disobeyer’, an acceptance of and, ideally, an appeal to the constitution - namely, democracy, the rule of law and fundamental rights. Accordingly, it involves an adoption of an axiologically internal point of view, an internal sceptic or critically reconstructive approach, an engugke or committed attitude toward a constitutional core. Anticonstitutional disobedience rejects or aims at subverting the constitution, eg through terrorism, revolution, military coup d’ktat, or even some versions of insumisibn.

In this paper we are not going to deal with disobedience in a pre-constitutional or non-constitutional society. In our view, the basic contrast is that between a form of disobedience that relies on constitutional values and/or principles and a form of disobedience that negates or directly rejects those values and principles, even if it does take a non-violent approach.

Of the different types of constitutional disobedience that can be isolated - right to resistance, unregulated conscientious objection, civil disobedience - we shall concentrate on civil disobedience as the clearest case of disobedience. Civil disobedience as a form, a type or a case of constitutional disobedience has the following features:

6. Similarly, J Raz The Authority of Law. Essays on Law and Morality (Oxford, 1979) ch 14 distinguishes between civil disobedience in the framework of a liberal state and in a non-liberal state. Likewise, V Black ‘The Two Faces of Civil Disobedience’ (1970) 1 Social Theory and Practice, 18-20 speaks about disobedience under despotism and disobedience under democracy. A M Bickel The Morality ofconsent (New Haven, 1975) p 96) points out that the very definition of civil disobedience must reflect the nature of the legal system, especially whether it is the system of a unitary state or of a federal state. M Kriele Rechr undPraktische Vernunft (Gottingen, 1979) p 122 distinguishes between disobedience under democratic states and disobedience under totalitarian states. Arguably, J Rawls ‘Definition and Justification of Civil Disobedience’ in H A Bedau (ed) Civil Disobedience in Focus (London, 1991) implicitly draws on some similar distinction when speaking about disobedience in a ‘nearly just society’.

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1. there is an allegedly manifest and serious breach of a basic constitutional value or principle, or of a fundamental right;

2. the ‘breach’ originates in a normative or policy-making authority; 3. the disobedient action reacts against this breach; 4. the disobedient action is a kind of last resort because other possible reactions

against the breach are considered to be ineffective or because the procedural mechanisms which are available do not react adequately or efficiently; the disobedient action is proportionate, and does not breach a greater value or create a greater injustice than that which it purports to correct.

5.

These features only give us a wide conception of civil disobedience; but in order to isolate the species ‘civil disobedience’ from the genus ‘constitutional disobedience’ we follow Bedau’s ‘orthodox” or restrictive working conception of civil disobedience as ‘a public, nonviolent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in the law or policies of the goverment’.* This conception has narrowed down the extension of the wide conception by adding on to it several important features (intension):

6. the disobedient action is public, ie it is performed in public or with a clear intention to transcend the individuality of the action;

7. the action is non-violent, it does not resort to direct physical coercion or to strong direct psychological coercion and ideally it does not use any form of coercion at all; it is political and not simply moral, ie it is a way of publicly engaging in a political claim; and its purpose is to effect a change in the law or in the policies of the government.

8.

9.

Insumisidn would be a good example of this narrow conception of civil disobedience. First, it fulfils the criteria of the wide conception. There is an alleged breach of one or more basic constitutional values - freedom of conscience, or the principle of equality and non-discrimination, the right to live in one’s language and culture, or the fact that the alternative social service deprives others of the chances to find a job. It reacts, through disobedience, against this allegedly serious and unfair breach. It is a kind of last resort given

7. G G James speaks about an orthodox theory of civil disobedience, ‘The Orthodox Theory of Civil Disobedience’ (1973) 2 Social Theory and Practice 475-498 as exponents of which he mentions definitions put forward by H A Bedau ‘On Civil Disobedience’ (1961) 58 Journal of Philosophy 653-661; J RawlsA Theory ofJustice (Cambridge, Mass, 1971) p 364, or ‘Definition and justification of civil disobedience’ in H A Bedau (ed) Civil Disobedience in Focus (London, 1991); R Weingartner ‘Justifying Civil Disobedience’ (1996) 9 Columbia Forum 327-335; C H Bay ‘Desobediencia civil’ op cit; R Martin ‘Civil Disobedience’ (1970) 80 Ethics; J Betz ‘Can Civil Disobedience Be Justified?’ (1970) 1 Social Theory and Practice; W T Blackstone Jr ‘Civil Disobedience: Is It Justified?’ (1970) 8 Southern Journal of Philosophy; C Cohen Civil Disobedience: Conscience, Tactics, and the Law (New York: Columbia University Press, 1971). For an example of less narrow definitions see H Zinn Disobedience and Democracy (New York, 1968) p 119, who defines civil disobedience as ‘the deliberate, discriminate violation of law for a vital social purpose’. 8. H A Bedau ‘On Civil Disobedience’ (1961) 58 Journal of Philosophy.

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that other possible reactions are considered by the insumiso to be ineffective, and finally, it is proportionate, especially since it is difficult to see which greater value might be breached by the individual act of insumisidn.

Moreover, insumisidn also fulfils the criteria of the narrow conception because it is public, as the insumiso does not hide or try to conceal his disobedience, it is non-violent, and it is morally and politically motivated. It openly breaches the law on ‘conscientious objection and alternative social service’, and is thus criminalised, and finally, it aims to change the law and the policy of the Spanish State, on the basis of constitutional values.

We do not hereby wish to imply that there cannot be some version of insumisidn which only fulfils the wider criteria. Indeed, one such form is rather close to conscientious objection: this special insumiso objects to the military service or its social service alternative (as legally regulated) on moral grounds, without thereby trying to engage in a public political act or in policy or legal discussions leading to a change in the law; he is not necessarily concerned with his peers’ obligations, all he wants is to be personally exempted from a legal duty.

3 CONSTITUTION AND CIVIL DISOBEDIENCE

The formation of this narrow conception of civil disobedience and its political justification within a constitutional framework mark an important turning point in the very concept of law. In working out a narrow conception of civil disobedience we have assumed a given idea of constitution, and at the same time, we have paved the way for this idea. Law is thus reconducted to constitution and civil disobedience is embedded in an idea of ‘democratic constitution’. Even more dramatically, in adopting a committed attitude to constitutional values, civil disobedience becomes a fundamental incentive and support for constitutional discourse: it enhances a dynamic, discursive, critical or open idea of constitution. The civil disobeyer becomes a ‘constitutional patriot’ in Habermasian fashion.

It is precisely this idea of constitution that we shall try to spell out, with no claim to originality. First of all, let it be said that by constitution we do not have any specific ‘constitution’ in mind. It might be that a great many elements or dogmas go into one specific constitution of one state, but our notion of constitution might consider many of those dogmas as being quite irrelevant, although they may be interesting and important: the territorial definition of a state (ie boundaries or capital), the form of a state, the territorial organisation of a state, the form of government, the symbols of the state, etc. All these elements might take different forms, but they are not crucial to the constitution of a nearly just society, they are secondary question^.^

What is crucial is the recognition, guarantee and development of fundamental rights and freedoms, the regulative principle of democracy and the respect for the Rechtsstaat or the rule of law. Fidelity or loyalty to law is understood as fidelity to this constitutional core. In this connection, for instance, it would make perfect sense to approve of the constitutional core contained in the Spanish

9. In the Spanish Constitution, eg the majority of the provisions deal with such secondary questions: of all 169 articles and 14 clauses, only arts 1 (paras 1 and 2). 9, 10 and 14-29 together with art 53, would come close to the constitutional core.

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Constitution (democracy, Rechtstaat and fundamental rights) even if it were to be considered perfectible, but to disapprove of many other dogmas contained therein (form of government and even the form of state, etc). That said, one must not neglect the fact that it is not always easy to define the territorial and/or societal boundaries of the polity thus constituted.

The recognition of human rights must not only lead to the adoption of a binding, directly effective Bill of Rights (liberty rights, social and cultural rights) but it must ultimately include the acceptance of an independent supra-state jurisdiction, as in the European Convention for the Protection of Human Rights and Fundamental Freedoms, supervising public or official conduct on the grounds of internationally recognised human rights standards.

Democracy implies, as the minimum, the sovereignty of the people, the division of public power and the separation of powers, and ideally, federalism, subsidiarity and direct participation of the citizens in the running of their society.

The rule of law (Rechtsstaat) is extended from its classical conception to include the principle that no sphere of state action escapes the control of law. The rule of law thus absolutely precludes raison d’Etat. It also embraces the principles of openness and transparency of public acts and of accessibility of law and policy to the public.

In a society governed by such a constitution, resistance or disobedience cannot be targeted against the democratic, constitutional order. The reason for this is that such order is based on ‘communal’ consensus,’o on a democratic contract, whereby power resides in the people and the constitution is seen and interpreted as the will of the people. Besides, the respect for human rights and the setting up of procedural and other mechanisms to guarantee such rights to all citizens, and to control public action in the light of such rights and on the basis of the rule of law, is the source of legitimacy. Any moral or political justification of disobedience or resistance which aims at undermining or transforming the legal- political foundations of a given society assumes that such society is not organised along the lines of a democratic constitution.

In a democratic society the existence of the constitutional core thus defined entails the unjustifiability of any disobedience or resistance which might aim at the undermining of democracy, human rights and the rule of law. Any justifiable form of civil disobedience will thus rely on the basic constitutional core of the given society. This approach obviously adopts an internal point of view. Our choice to deal with civil disobedience only in the context of a democratic society equally indicates a commitment to the values of the constitutional core.

A democratic constitution requires a system of rights-guarantees and it is to be interpreted in such a way that the rights recognised become fully effective. Indeed, different and divergent interpretations of the same constitution are possible, and civil disobedience will then be the result of a fundamental disagreement about a particular interpretation of the constitution carried out by the government or by the legislator in a specific subject matter (take the obvious example where the government requires the payment of a given tax in order to enjoy the right to vote). In that case civil disobedience, by relying on a different reading of the constitution, enacts constitutional debate between the official, governmental reading and an alternative reading. The fact that a final legal

10. Communal as opposed to numerical. See Dworkin’s plenary lecture to the Bologna 1995 World Congress of the IVR.

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decision has to be made adjudicating between rival, or at least different interpretations does not, in our view, automatically make this decision a ‘right’ one on the moral or political levels, not even the only right legal answer; it only makes it the institutional answer. Fidelity to the constitution in no way presupposes blind acceptance of the law or policies of the government of the day, nor even acceptance of the rulings of a constitutional court, which nevertheless do hold a prima facie claim to, and a rebuttable presumption of validity and legitimacy since they are the result of a democratic process, or of an independent institution entrusted with the authority to interpret the constitution.

4 CIVIL DISOBEDIENCE AND NORMATIVE DISCOURSE

What is the normative status of civil disobedience? Is it a right at all? What are the constitutive rules of such a right? Under which conditions can it or should it be exercised? What are the consequences that follow from such exercise? Can the constitution be interpreted so widely as to conceive of a constitutional right to disobey? How does one solve the conflict between that right and other rights?

We shall find different responses to these problems from different normative systems in morality, politics and law.

It seems to us that the civilly disobedient agent appeals to, at least, her or his own personal morality and sense of justice, but also to the shared moral and political views of society, as embedded in the constitutional core, and therefore also to law, or to a given interpretation of law as inspired by what is considered the correct interpretation of the constitutional core. Those claims might be contested, and debated, again, from different normative levels, and more prominently from the common moral and political views and from the law.

Whereas the purely moral and political debate has no dramatic personal consequences for the civil or constitutional dissident, the debate in law might entail dramatic consequences since organised society reacts to a breach of the law by means of coercive sanctions. That is why we are primarily interested in the legal debate on civil disobedience and, ultimately, in how other normative discourses make their way into the legal debate.” As we have already advanced, by appealing to shared constitutional values as justification for their action, the civilly disobedient agent places herself or himself in an interpretative constitutional debate, ie in a debate as to which is the best reading of the constitutional values in question.

5 IS THERE A LEGAL RIGHT TO DISOBEY?

Given that any disobedience implies a breach of a formally valid law (or legal obligation), the short answer from the normative legal discourse is that any disobedience will be unlawful, and cannot therefore be a right. It would be contradictory to put forward the claim that the law recognises the right to disobey the obligations following from that law. Such a statement would amount to the

11. See Ralf Dreier ‘Derecho y Moral’ in Emesto Garz6n Valdes (ed) Derecho y Filosofia (Barcelona, 1985) p 74.

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law negating itself. The treatment of civil disobedience will then delve into the question whether there might be any defeasibility conditions under which either:

1. the legal obligation was, after all, invalid in the instant case, and this is a question which can be solved in legal discourse by way of a final judicial decision (of a Supreme or Constitutional Court) which will either c o n f m the validity (or constitutionality) of the obligation or its inexistence in law and therefore the lawfulness of the action which, at first sight, was conceptualised as civilly disobedient; or the legal obligation existed and was always (constitutionally) valid and it was certainly breached in the instant case but there were additional circumstances - such as valid defences in law -that impede the consideration as a ‘legal wrong’ of a given conduct which would prima facie be so considered and which therefore pre-empt the legal consequence or sanction that would normally follow from such prima facie wrongful conduct, or at least circumstances that mitigate the sanction.

2.

The statement that a given right exists in the law is a statement relative to a particular legal system. In that sense, each legal system will have its own criteria of recognition and will provide its own constitutive rules for that right. The problem is really where to look for the right. The different conceptions of law and legal system will provide with a different response.

In the case of insurnisidn, for instance one can look at the valid legal texts regulating this phenomenon (a classical legal positivist approach), and then the answer might go in one direction: the criminalisation and penalisation of insurnisidn clearly indicate that it is not a right in the Spanish legal system.

But one can take a further, ‘Dworkinian’, step and also look at the political theory behind those and other texts (a constructive interpretative approach)I2 and then the answer might go in a different direction: insurnisidn could be seen as an extension of the right to consciencious objection, the freedom of conscience, the right to dissent, the right to live in one’s language, which might be constitutionally protected, although few actually argue that any such right exists with such a scope. In any case we are again placed in the constitutional debate.I3

Alternatively, one can even look at institutional practice (in a legal realist mood) and then many more tones will be added to the picture: some insurnism have been acquitted on different grounds by the courts allowing the insurnisos’ moral convictions to stand.

The legal positivist might at best accept that there is a clash in certain circumstances between different norms - the duty to obey and the freedom of conscience - and that the right to follow one’s conscience will only exist if it has some basis in a source of law. However, the Herculean, fully informed and insightful interpreter might venture to argue that the political theory behind the constitution and behind the binding supranational and international human rights instruments require that the freedom of conscience be taken seriously in the instant case, and the legal realist might very well suggest that pragmatic

12. Of course, we are here inspired by Ronald Dworkin Law’s Empire (London, 1986). 13. In this sense, see, amongst others, L R Velvel ‘Protecting Civil Disobedience under the First Amendment’ (1967) 37 George Washington Law Review 464-484 and B J Katz ‘Civil Disobedience and the First Amendment’ (1985) 32 UCLA Law Review 904-919.

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considerations be taken into account when dealing with such conflicts in instant cases. The constitutional debate, in any case, cannot be avoided.

It is very likely that all three approaches will give us a negative answer: no, there is no such thing as a legal right to disobey the law; that would almost be a contradiction in terms. Even if not explicitly stated anywhere in the law, the statement that ‘one must obey the law’ or that ‘the law is to be obeyed’ is inherent to the concept of law as an action-guiding and action-jusming system.

There is therefore no legal right to disobey, but rather a duty to obey and if such is the case, then perhaps one must take a completely different approach and look at the defeasibility conditions or the limits of the duty to obey and at the conditions in which such a duty cannot be imposed, or rather the conditions in which failure to observe that duty can find some justification or excuse. Rather than questioning the legalityhalidity of the act one looks at the legal responses to disobedience.

This approach has two advantages: the inherent claim to obedience (linked to the claim to validity) is respected while at the same time the debate turns around the question of the possible justifications for the breach of that duty, which calls for the interpretative and pragmatic approaches to be considered.

Looked at from a different angle, it is possible to hold that although there is no legal right to disobey there can still be a moral or even a political right to follow one’s conscience in certain circumstances, even if that means breaching a legal duty of obedience.I4 If these extra-legal rights gain sufficient popular support, then they can somehow make their way into the law, normally at the stage of the judicial application of the law, but possibly also at the stage of norm- making when considering possible defences: justifications, excuses, or mitigating factors for breach of a given legal duty.I5

We are then facing a classical situation where the law (legal discourse and the legal process) is the subject of interferences from other normative systems.I6

Going back to our insumisidn example the question ‘Is there a right to disobey?’ acquires new dimensions. Disobedience as such would not then be the object or content of the right but rather an extreme way or procedure in which certain other rights are affirmed or can be resorted to or exercised in order to justify a breach of a ‘lesser law’.

Znsumisidn might be morally justified in certain circumstances on the basis of deeply entrenched pacifist or anti-militarist positions, and these moral grounds might receive some support from key actors of the legal field, or of the political field. But the question will irremediably be one concerning the legal response to insumisidn, or its possible justification in law or, at the very least its status as

14. Thus, when there is a breach of pre-positive individual rights against government (R Dworkin Taking Rights Seriously (London, 1978) ch 8) or of rights that are essential to democracy (P Singer Democracy andDisobedience (Oxford, 1973) part a). See also B Zwiebach Civility and Disobedience (Cambridge, 1975) ch 5; M Walzer ‘The Obligation to Disobey’ (1967) 77 Ethics 163-175; P Harris ‘Introduction: The Nature and Moral of Civil Disobedience’ in his reader, CiviE Disobedience (Lanham, 1989). 15. See R Dworkin ‘On Not Prosecuting Civil Disobedience’ (1968) 10 New York Review of Books 14-21, and K Greenawalt Conflicts oflaw and Moruliry (New York, 1989) part IV. 16. This negates in some way the claims of the closure of law made by some followers of Luhmann’s theories and autopoiesis.

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an excuse. Some Spanish judicial decisions have actually provided an interesting justification within the law, which in our opinion, is well founded and convincing.

Thus, the judge from the Juzgado de Instruccih no 2 of San Sebastian, on 20 December 1994,” decides to file or reject the allegations (complaint from the procurator fiscal) in the given case, considering that they do not relate to the existence of a crime given the presence of the justification provided for in Art 8, para 7 of the Penal Code - ie the plea of necessity or estado de necesidud. The following is a translated excerpt from the order of the Juzgudo whereby the case is filed (4th considkrant):

‘According to the theory of the negative elements of the penal type there is no evaluative difference between type and unlawfulness. A conduct cannot therefore be typical if it is not unlawful, and a given behaviour cannot be permitted - and thus lawful while at the same time constituting a penal type - and thus being prohibited. Justifications are negative elements of the penal type and in their presence conduct becomes atypical and thus non-criminal. This is what happens in the case of insurnisidn where unlawfulness disappears because the accused was in a state of necessity in the sense of Article 8, paragraph 7 of the Penal Code. This “estado de necesidad was constituted by a situation of absolute actual or imminent conflict between two values where the preservation of one meant the sacrifice of the other or the breach of a duty. The main traits that characterise such a state of necessity are: a) a ‘danger’ to the legal good or value, which requires an evaluative judgement ex ante; b) such danger is real; c) the prejudice which is to be avoided must be actual or imminent d) the prejudice pointed at by the danger concerns a legal value worthy of protection; and e) the conflict must be ‘absolute’ (Judgment of the Tribunal Supremo STS 3 1 January 1986). If the legal value which is sacrificed is of less importance than the greater legal value being secured one speaks of the plea of necessity as a justification. These traits are present in the instant case because the accused was facing a real, actual, imminent and serious conflict between his [constitutional] right to the free development of his personality in the legal framework or scope of freedom allowed by society and the duty to contribute to national defence in the context of a military society which marginalises his true personality by subjecting him to the principles of hierarchy, rank, discipline and uniformity which characterise military life. Facing such conflict, the accused opted for breaching the second legal value in question and for giving primacy to the first which is a greater value, and this, in the absence of legal mechanisms or procedures allowing him to transcend such conflict.’

A similar reasoning was followed in a clearing judgment (Sentencia), No 75 by the Juzgado No 4 of Madrid, of 6 March 1992. The case may be summarised briefly as follows: IAG, who had previously been active in different sorts of voluntary jobs and social aid, was declared a conscientious objector and exempt from military service. He was summoned to work in an old people’s home but refused to comply, objecting to the very existence of an alternative social service, which, in his view, implies an indirect acceptance of the military service, which goes against his conscience. According to the judge, the accused could not be blamed for lack of solidarity or generosity, or for dessidious behaviour since

17. Resolucidn de sobreseimiento de diligencias previas 23 14/94,

Civil disobedience as constitutional patriotism 445

his attitude was aiming at the abolition of the compulsory military service, from which he had already been exempted, and he was willing to accept whatever penalty might be imposed on him (two years, four months and one day imprisonment). He was thus assuming the legal order and the authority of the state by submitting himself to the judge and being ready to comply with the judgment.

According to the judge there was a clear conflict of values between conscience and law. The conflict involved on the one hand (1) the freedom of conscience, which is a fundamental constitutional right (Art 16), (2) the constitutional value of the dignity of the person (Art lo), itself a pillar of the legal order and social peace, and (3) the free development of personality ( A r t s 16, 19 and 20 of the Constitution), and on the other hand the duty to comply with the alternative social service. The conflict was to be solved by giving primacy to conscience, which was tantamount to giving preference to the person and her dignity. In this conflict, the accused faced a state of necessity whereby the breach of the duty to comply with the social service was the only way of preserving his dignity. His conduct was proportionate because the harm he provoked was smaller than the harm he avoided. The plea of necessity was an exonerating circumstance leading to acquittal. l 8

We can see that both decisions point to the idea of a conflict of values leading to a state of necessity and a choice of the greater value, ie the freedom of the person, as against the duty to comply with the military service or the alternative social service. The main elements selected by the judges in order to justify conduct are personal elements: the civility of the conduct and even of the disobeyer himself is stressed and a great effort is invested in showing that there is a genuine conflict of values. The aims which the acts of insurnisibn were seeking - to alter the law and policy of the go~ernment’~ - do not feature in the reasoning. Znsurnisibn is conceptualised in terms of a strong conflict between morality and law rather than a conflict between politics and law.

The legal treatment of insumisibn, especially by the criminal law has tended to emphasise the moral dilemma in which insurnisos find themselves. In order to justify their behaviour from the criminal law standpoint they appeal to the freedom of conscience and to the free development of personality, which are, indeed, genuine personal motives and moral reasons which justify their breach of the law and have the greatest chances - in legal realist terms - of making it into legal discourse and becoming successful defences (be they full justifications or excuses). The political reasons alleged by civil disobeyers (and insurnisos) and the ensuing constitutional interpretation on which they rely -besides relying on constitutional values of moral origin - embrace other rights like the right of political participation of a social minority affected by the decisions of a majority and other constitutional values: peace, freedom and justice.

18. For a detailed discussion of this judgment see M Atienza ‘Un dilema moral. Sobre el caso de 10s insumisos’ (1992) 25 Claves 16-30. 19. There are over 3,000 cases of registered insumisidn in Spain. The insumisos in question have made it plain that their aim is to fight against a law that is unjust, discriminatory, militarist, etc. It is worth noting, in this regard, that the Spanish Conscientious Objection Movement, MOC, which represents the greatest number of insurnisos held a press conference following the order of the San Sebastian judge. The movement praised the reasoning of the judge but reminded him that their main objective was not to be personally exempt from military service but rather to achieve demilitarisation.

446 Legal Studies

The cost of this emphasis on the moral dilemma is that it makes civil disobedience almost a personal matter rather than a societal conflict. The potential for constitutional debate and interpretative discourse is lost, or at least diluted in the presence of strong moral reasons or moral-legal objections, stressed by the judges and perhaps even shared by them,2O which lead to the state of necessity. Yet, it must not be forgotten that the aim of civil disobedience is to bring about a change in the law or policies of the government, and not necessarily to avoid the imposition of a sentence for the breach of a duty. The aim, once again, is to irradicate from the legal order those laws or policies originating in the public authority which, in the insurnisos’ (civil disobeyers’) view, breach fundamental constitutional values: non-discrimination, peace, political participation, freedom of conscience, dignity of the person, free development of personality, participation, the right not to be forced to live outside one’s culture and language during a considerable period of time, or even the right to education.

Civil disobedience and thus insurnisidn should not therefore be regarded as a right but rather as a means or instrument of last resort - since it implies a breach of a legal duty - in the defence of fundamental rights, an extreme case of self- protection of fundamental rights. At best, it can be construed as a defence or a justification for the breach or, more realistically, as an excuse, but that in no way turns it into a (subjective) right to disobey.

6 CONSTITUTIONAL DISOBEDIENCE AS PARADOX

From the previous discussion we can conclude that civil disobedience has several normative dimensions:

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reasons of political morality give rise to a situation of conflict as regards a legal requirement or duty; moral and political motives lead to the decision not to comply with the duty; moral reasons inspire the response, which is a civil response, ie non-violent, willing to accept the consequences and, at least partially, the result of a moral deliberation; the response is seen by the agent as a political act: a public act appealing to the sense of justice of the majority and thus calling for popular support;

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20. In this connection the third conside‘runt of the order mentioned above (20 December 1994) reads: ‘the development of the personality of the individual in a framework of liberty is not sufficiently safeguarded by the conscientious objection as foreseen in Article 30.2 of the [Spanish] Constitution and as regulated in Statute 48/1984 of 26 December. This right is much more complex and affects many other fundamental rights and freedoms, and is difficult to reduce to pure motives of conscience as contained in Article 1.2 of the said Statute, notwithstanding the “numerus apertus” formula adopted by the legislator. Besides, the procedure leading to the declaration of conscientious objector, provided for in Chapter I1 of the Real Decreto 551/1985 of 24 April does not contain the necessary guarantees, the examination of the objector’s conscience being an extremely difficult matter and the need to avoid fraud and deceit leading to a very restrictive interpretation of the freedom of conscience which affects the principle of equality. The substitute or alternative social service, as regulated in the Real Decreto 20/1988 of 15 January, thus becomes a type of penal sanction hidden behind the ideological alibis of social utility or the common good to which it is oriented.’

Civil disobedience as constitutional patriotism 447

- the aim of non-compliance is political and seeks to change the targeted law and policies in force and also to change or influence public opinion and its attitude towards the targeted law and policies; the fact that there has been a breach of a legal duty or an unlawful act opens up the legal debate and calls for a legal response.

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The typical legal response in such situations is incrimination or, at least, prosecution. The only approach left will be the criminal law discussion under the plea of necessity which turns the civilly disobedient act into a personal moral act which might constitute a justification excluding the presence of a legal type or its unlawfulness (ie excluding a legal wrong) or, more likely, a morally justifiable excuse which mitigates the penalty to be imposed. The public and political dimension of civil disobedience as engaging the constitutional debate is thus lost. The first paradox is sketched the civil disobeyer obtains a favourable response from the legal system (the law and the officials) but his or her action loses political impact because it is reconducted into a personal act.

Law does not debate politics and if the civil disobeyer insists on the political meaning behind his or her act and refuses to reduce it to a justification or to a morally justified excuse, then the law might have no other safety valve to accommodate for the particular form of civil disobedience and will most certainly penalise the act. The disobeyer will be punished in spite of the civility of his disobedience, in spite of the moral justification of his action and in spite of his willingness to engage in a constitutional debate. Paradoxically, it is this tragic situation whch will give civil disobedience all its potential and public attention. Without necessarily wanting to do so, the legal system will refuse to engage in the constitutional debate and penalise civil disobedience and in this sense it will ‘run amok’ against the constitutional patriot. The political forum will then be the only context left for discussion of civil disobedience, of the aims it seeks and of the constitutional justification it relies on.

Civil society, while still wishing to avoid the pragmatic contradiction involved in recognising a right to disobey the law, can nevertheless become aware of its unjust response of punishing a civil disobeyer. In that case, not only will the particular act of disobedience in question, say insumisidn, be discussed at all levels with a possibility for legal reform in the criminal statute book, or even in the attitudes of the major legal agents towards the insumisos, but furthermore the more general question of civil or constitutional disobedience itself, its nature, its limits and the conditions for its exercise will be tackled by moral, political and legal discourse, and this will in turn contribute to the reinforcement of the democratic, constitutional practices of society. Indeed, the new government formed in Spain by the Popular Party, with parliamentary support from the Catalan and Basque regionalists has announced that, as a result of the negotiations leading to the agreed support for the present government, the military service would cease to be compulsory, a move which has also been announced in France. Furthermore, the Spanish Parliament has recently passed a bill to equalise the length of the military service and of the alternative social service.

Ultimately, an open, democratic, constitutional society is one where moot issues such as civil disobedience are discussed with interest and enthusiasm and where the body politic is not wont to treat them as ultrasensitive questions to be discussed in camera by a handful of curators of the public interest.