Constitutional State and Civil Disobedience

Constitutional State and Civil Disobedience

Summary

Civil disobedience is an action undertaken by civil society. While it may notbe in consonance with certain existing laws, in a modern democratic setting,or in one with democratic pretensions anyway, it cannot be flatly condemnedas an outright illegality as it is done in a transcending moral high ground. Itsobjective is not necessarily the supplanting of an established government, orcoup d’etat, but merely the repeal or revision of an existing arrangement orlaw that is being perceived to be violative of human rights. Such action ismerely a mode of expressing a disagreement. It is to be ideally resolved notby repressions on the part of government, but by repeal or revision of the lawor situation being complained about. The early Christian martyrs in theancient arena of the Roman Empire are perceived to be the precursors ofpresent-day civil disobedience actors. In comparatively recent history,Mahatma Gandhi’s non-violent method of ousting British rule in India was oneexemplification of civil disobedience.

Civil society as a phenomenon is a “natural” or informal, andspontaneous, reaction to deviant behavior of state that had been corruptedand degenerated from the accepted norms. The phenomenon has beennoted by historians as a balancing force to the unbridled power of the statethat became enhanced after the demise of the corporated bodies that hadexisted in the middle Ages. Its existence as a counter-force to the state is thenatural consequence when law, as a result of perversions in socialgovernance, was allowed to become the overly predominant element amongthe various elements that make for a well-ordered and progressive society ina milieu of peace.

Reconciling government and civil society has become a majorchallenge in the administration of a modern state.

Introduction

Civil disobedience has become a frequently recurring term in a modern state

but is not as widely or adequately discussed. In the light of a traditional conception

which remains colored against it, civil disobedience is more often perceived to be a

negative mode of social expression. However the tremendous growth and


development of a society that is more open and autonomous unavoidably encourages

the rise in number civil disobedience incidents. In the light of this development, civil

disobedience is not just a recurring phenomenon, but is developing into a requisite

hallmark indicating the state’s recognition of civil rights. Henceforth, the problem of

civil disobedience may be regarded as an attempt at resolving tensions between

contending poles, that of “civil society,” with its rights and constitutional status, and

that of the formal and legal administration of the state, i.e., the government. This

paper will discuss and attempt to provide a rather general picture of such a problem

situation which, as much as possible, will be reflective of tensions within the context

of the Indonesian situations.

The Rise of Civil Rights’ Awareness

Since John Locke1 (1632-1704), there has appeared a notion that man has

fundamental rights which are apparent in social life. Those rights comprise life,

liberty, property. These are believed to be unalienable rights inherent in human nature

and existence. In view of this, human beings are believed to have a duty to respect

one another and to avoid violating each other’s rights. According to Locke, in order

to guarantee such these rights, man agrees to establish a state. Although they are

aware of such those rights, it can be gleaned from the earlier philosophers, such as,

Hobbes, Spinoza, Montesquieu, Kant and Rousseau, that a fact in practice up to 19th

1 Leonardo N. Mercado, S.V.D. Legal Philosophy. Western, Eastern, & Filipino, Philippines: Divine Word University Publications, Tacloban City 1984, p. 36-38.

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century, individual persons had not yet actually consciously played their roles within

the state. Had they been really aware of their rights in relation to the state?

States conceived as new emerging social forces seemed to have developed

naturally, although they had transformed the power of kings in the monarch. A person

may live alone or in association with others as a means of obtaining mutual benefits

and of avoiding harms. The governing principle in this case is do ut des. I give in

order to give. The rulers, on the other hand, reigned and carried out their duties

oblivious, as it were, of the existence of inputs from the society they governed.

Sometimes they were successful; sometimes not. Seldom were there protests or

agitation for reforms. Citizens as individuals sometimes needed to form collective

forces against unlucky fates, but they had not yet clearly formed positive notions or

efforts towards the formation of a future society.

That was more or less the depiction of the situation in traditional societies up

to awaking of consciousness of human rights.2 Gradually, particularly after the World

Wars, awareness of human rights became a reality and introduced revolutionary ideas

pertaining to the collective lives within a state and, inevitably, the rights of the

individual citizens therein.

Which one preceded which? The state as a formal union of collective life, or

the individual’s awareness of human rights within such a collective life? Philosophers

imagine that the state exists because of collective will of individuals bound by a

social contract or agreement based on each individual’s awareness of a need for a

2 A. Cassesse, Hak-hak Asasi Manusia di Dunia yang Berubah [Human Rights in A Changing World], Jakarta: Yayasan Obor Indonesia 1994, p. 3-9.

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collective life under the aegis of a state and that it is such an awareness that

legitimizes the existence of the state. Social history, however, shows that the state

seems to emerge by itself because of natural drives. But basically because of the

misapplication of the state’s power and force, the people’s awareness of individual

human rights was aroused and came into being.

Thus awareness of civil rights must be first traced back to the emergence of

the state. The more powerful a state is in governing society, the higher is the citizens’

awareness of the necessity to defend their rights against it. Awareness of such rights

within a state is a natural human response to a need to assert basic human rights that

must be respected if a society is to remain healthy and viable. An individual's

capability to assert such rights, however, is a function of his economic situation. An

economically deprived individual is handicapped in asserting his rights.

The rising awareness of human rights can lead to clashes if the same is

perceived to be absolute as in the notion adhered to by the advocates of John Locke’s

individualism and liberalism as opposed to the collective advocacies that reduce

individual freedoms in favor of the monolithic tendencies of the state. The resulting

tensions between these contending views is ultimately the source of the phenomenon

of “civil obedience,” often regarded as disconcerting, depending on who is viewing

the matter. It is not easy to reconcile and balance the human rights interest of the

individual recognized as civil rights and the public interest of the collective lives

within the state and said to be within the exclusive competence of social governance.

Each of the two interests appears to be a hindrance to the other. The two interests,

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however, need to coexist, and because of this the notion of full rights and freedoms

can never be met. Such an apparent conflict clarifies the position of the philosophers,

like Locke and Hobbes that without the creation of state grounded on rational law,

there would only be the law of the jungle, where the strong dominates the weak. A

notion that each individual has the same and equal rights is theoretically deemed

correct, but practically they cannot as a whole be met; hence such rights could be

made concrete if the individual citizens could agree to certain concessions to arrange

for their collective lives. This is the notion that justifies the creation of the

constitutional state within the compass of its instruments and apparatuses and,

simultaneously, the recognition of “civil rights,” so-called. In history, especially since

the promulgation of the Declaration of Universal Human Rights by the United

Nations in 1948, civil rights have develop into freedom of speech, freedom of

adhering to one’s religion, freedom of applying religion and its faith, etc. All these

indicate society’s participation in the administration of constitutional state.

Characteristics of Constitutional State

It is very facile for one to say that Indonesia is constitutional state. Questions,

however, arise because of several interests. Some demand immediate resolution of

crimes committed by officials of the state. Some malefactors, on the other hand,

invoke the notion of a constitutional state to escape conviction and punishment for

crimes they have committed. As a consequence of this, it becomes easy to understand

why former president Abdurrachman Wahid’s proposal to resolve this matter by

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means of “reverse proof” gained a positive response. Tempo, a weekly magazine

(April 16-22, 2001) in a survey, shows that 83.3% of 576 respondents agree with the

idea of that “reverse proof”. Under this “reverse proof” principle, an accused is

presume guilty of a crime until he could present proof that he could not have been

guilty of it.

“Rechsstaat” does not merely mean that a state has a legal system, since all

modern states qua state have legal systems. It is here the place of difference of

modern state and traditional monarchic in the past. However modern state does not

mean always better than traditional monarchic if the only difference is that the

modern state has legal system. Since it can happen that law is unjustly or arbitrarily

made or the existing laws are being manipulated for the sake of vested interests or for

the sake of a corrupt ruling regime. It may also happen that the law is being violated

to achieve “political legitimacy,” or for “religious reasons,” or for the unity of nation,

or for any allege necessity where it becomes convenient to is set aside the law, or to

subordinate, abused or violated so that it not longer functions as it is supposed to.

If law cannot anymore be implemented, there is no point anymore to having a

collective live, which is the law. Law would be like the roof of house which turns

fragile. A fragile and decayed law is a serious hazard to the collective life which it is

supposed to protect.

It is not enough for a constitutional state to have a legal system; It must

rigorously implement an existing legal system. Prof. Franz Magnis-Suseno, S.J.,

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identified3 four characteristics of “constitutional state”. First, the existence of positive

law; second, the application of control by effective judicative powers; third, the

grounding of state of the constitution to guarantee human rights; fourth, a separation

of powers must be applied.

Power is carried out in accordance with existing positive law, that is to say the

state must provide adequate law enforcers, police, and attorney, justice apparatuses to

which those instruments of law by themselves must obey and be loyal according to

the existing law during the execution of their duties. Against any form of abuse by

means of manipulation and subordination against law, measures must be immediately

and firmly taken as failure to do so may erode the “constitutional state”. Thus, law

must hold strong and legitimate to force accountability. The application of positive

law is intimately related to two chief nature of law, namely “just” and “firm”.4

Law must be “just”, both materially and formally. The material of law must be

formulated in its articles and endorsed to pursue justice. If that material of law has

been made to defend the interest of corrupt rulers and their regime, law becomes

putative law, aspal or asli tapi palsu, meaning original, but fake. A just law applies to

all parties equally, regardless of race, religion, ethnicity, etc. The practice of providing

“impunity” for some, which encourages the abuses of government officials, while

imposing obedience on the part of ordinary people constitutes formal injustice.

Furthermore, law must be “firm”, both in its formulation and application. A

3 See Franz Magnis-Suseno, S.J, Etika Politik. Prinsip-Prinsip Moral Dasar Kenegaraan [Ethics of Politics. Fundamental Moral Principles of Statehood], Jakarta: Gramedia 1987, p. 298.

4 F. Magnis Suseno, Ibid, p. 79-81.

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weak formulation of law, like, for instance, laws some of whose articles are “rubber

articles”, or articles that can be interpreted to one’s convenience, can be easily

misused for the interest of the ruling power, particularly when they are used to

downgrade political opponents. Law must also be firm in its application. A normative

nature of law takes up the instruction to be carried out accompanied by legal

sanctions to apply to people who do not obey for injustices they commit. Henceforth,

law in regards to a just system of regulation in the collective lives, is provided to be

carried out and obeyed and not just merely being possessed as accessories in the life

of state. In this view, it is apparent that “constitutional state” is regarded as a term in

practical moral philosophy. The term does not merely constitute a theory of state.

It is supposed that a clause of “just” and “firm” is unnecessary. It is because in

view of normative understanding, “law” should be constituted “law” due to the nature

of its “justness” and the certainty of its implementation. The application of unjust and

weak law is opposed term to the essence of law itself. In this case, we were reminded

with a barren debate in the People’s Consultative Assembly about the need for a

principle of “jurdil” (honest and fair) elections. This debate indicated how the

Parliament played with the law as such, thus the problem of the practice of law is

equated with the problem of jargon (phraseology). Such perverted discussion of law

strongly indicated why law was not highly appreciated as a practical means to

guarantee a just collective life.

Furthermore, a state has the constitution which guarantees human rights and

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division of power.5 Since the downfall of Soeharto regime, interest in human rights

began to develop. This also indicated that how human rights were highly neglected,

taken for granted by the state, and moreover the state itself committed the violation. It

is as if that in order to pay for sins, the government starts to bring human rights issues

into attention, for instance the government establishes a special department for human

rights, investigation due to the violation of human rights in the past began to carry

out, and also in this light there is also a movement to foresee the Constitution, which

was formerly made at time of emergency. The constitution plays its role to provide a

fundamental orientation to the applied laws, so that its justice is not only merely legal

in its nature in accordance with law-making, but also to promote the aspiration of the

living people.

Hence, “Rechsstaat” is moreover opposed to “Machsstaat”, it is not because

one embeds law as a principle of state, whereas the other does not, but rather it is

because, in practico, it is embedding law above all, balancing the power and authority

of the state’s official, to carry out the law consistently and, consequently, applying

and imposing the law equally for all peoples. “Machsstaat,” on the other hand,

embeds the ruling power above all, putting them even above the law itself by

arbitrarily acting and implementing policies out side the law. Law was made to

support private interests. In that case, there is point making a distinction between a

modern state with all of its sophisticated legal system and the traditional monarchic

government if the system is not just enforced. In light of political controversy, an

5 F. Magnis Suseno, Ibid, p. 300-302.

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authoritarian government is criticized as it misuses the principle of “the rule of law”

and turns it into “the rule of the ruler”. Such abuse contradicts the principle of

democracy by which is absolutely needed for the creation and implementation of

modern law.

Law is badly needed for the sustainability, order and social justice. Law is a

normative traffic for a modern state to realize the peoples’ ideals and goals. As a

normative traffic, the interest of law is not merely theoretical, but also practical. Law

must be obeyed and eagerly and truly implemented. Because without law, a state will

be in chaos, the people will only fight one another for their interests with violence and

arbitrary force, which can eventually bring it to total destruction, or to a “lose-lose

solution,” or to a never ending fight for power and to avenge a defeat with a defeat.

Without law, a state cannot be called a state. Hence, a strong demand to obey the law

of the state must be followed also by the big efforts to implement the law justly. It is

indeed a big irony, if law is not really neither just, nor material, nor formal, while

people are strongly obliged to obey it.

Obedience and Violation of State’s Law

In socio-political context, obedience over law of course also creates a

problem, because law is even made to make people obey it. Indeed, it may happen

that obedience is done by persons with a suppressed feeling, because s/he might not

agree, like or cannot accept that law, but s/he does not dare to violate it. Obedience

over law is not driven because one agrees or disagrees with the law, but driven by a

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fear of legal sanctions imposed which must be accepted, either individually or

collectively, for instance, if his/her leader violates the law. If such situation spreads,

there may be occur a paralysis in social life. Even then if the law is implemented, it is

not wholeheartedly implemented. Such a situation, precisely, is what is happening in

colonial societies.

The situation of a society where law is loyally obeyed is secure and in order,

because all acts are done in accordance with law. But the quality of social life in a

society which obeys unjust laws and which implements good laws not wholeheartedly

or forcefully leaves much to be desired. This could become worse in the absence of

testimonies over the injustices that are happening. The same situation will avail in a

dictatorial state, whether fascist or communist, where administration is frequently

held by one single party that dominates and controls the whole. People would be

forced force to obey even unjust laws. In such a situation, the political opponents

could be easily silenced, terrorized, and cheated.

From another perspective, it may also happen that violations of the law are

committed by a person to promote his own interests, because there is no other way to

promote such interest, except by violating the law. Selfish interest may also be

promoted by ignoring the right and freedom of other people or the rest of society.6

In fact the goal of the law is to restrain selfish interests in order to promote the

general interests. The violation of this principle is a form of fraud; it s not, however,

relevant to cover it in this paper whose framework is limited to civil disobedience.

6 R.T. Hall, The Morality of Civil Obedience, New York: Harpar Torchbooks 1971, p. 24.

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There are two situations where a state may only be putatively a “constitutional

state.” First, in a country where the government is oppressive and laws are made or

implemented in favor of a ruling class. In this case the people may obey the law but

not wholeheartedly. Second, in a country where law exists but violated with impunity

by government officials.

civil disobedience which is the subject of this paper differs from these two

situations wherein people have become fearful and apathetic. “Civil disobedience is

characterized by defiance and open protests against norms promulgated by the state.

In this case, the people assume that existing laws are violative of human rights and

are unjust and, therefore, they are not obliged to obey. As a concept, however, civil

disobedience cannot be strictly categorized in the sense of being a violation of

criminal law, because the intention is not criminal but the good of society as a whole.

If in the process a law is violated in civil disobedience, it is motivated by higher

moral considerations. In civil disobedience, the position of those who disobey is that

it is the law, or some aspects of it, that constitutes a crime against human rights and

therefore questionable. Thus persons who have committed crimes deny their crimes,

whereas, those engaged in civil disobedience openly admit their defiance of law.

State and Civil Society

Here at this juncture, it will be logical to discuss Karl Marx’s7 [1818-1883]

critique against capitalist state to understand civil disobedience more fully and thus

7 Franz Magnis Suseno, op.cit., p. 259-280.

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obtain a clearer picture of “civil society.” According to Marx, what John Locke

revealed about the function of the state as society’s guardian through law and

constitution cannot be verified. That law can govern fairly the division of right and

duty of all peoples exists only as an ideal. In reality, Marx said, society is divided

into two conflicting strata of classes, the impoverished working class, on one hand,

and the rich capitalist class, or bourgeois, who own capital. The work of workers and

their productivity depends on the capital class that determines their work and wages.

Under such an arrangement, the workers merely have to obey, as the

possibility for a fair legal bargaining with the capitalist class was simply impossible.

In such an arrangement it is impossible to say if the state is a product of a fair

contract, because only the dominant bourgeois determines all matters. In other words,

the laws are on the side of this class, since this class also determines the law. In short,

according to Marx, the modern state can never be neutral and fair. Theoretically,

therefore, Marx has vested legitimacy for going against the state. This is the premise

of the “proletariat revolution” for the establishment of a communist society.

The Marxist’s division of society into worker and capitalist classes has

recently invited criticism from Habermas who contends such dichotomy is not longer

valid in analyzing contemporary society which is pluralistic in nature. Habermas

contends that communist society does not completely have a historical basis, so that

his philosophy is frequently regarded as crypto-religious in nature. However, there

remains one truth in Marx which seems excluded from Locke’s observation, which

limits the notion of state to political imperatives; namely, that the founding of a state

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cannot be divorced from a prevailing economic situation as a major determinant of

its nature. For Marx the economic factor predetermines political configurations.

If at time of Marx, the bourgeois class had accesses to political decision-

making. Nowadays, the politicians collude with rich businessmen who finance

important political events. “Money politics” has become the order of the day at the

expense of a moralistic social order, thus mocking all notions of a constitutional state.

Marx assumed that the constitutional state would eventually collapse to be

supplanted by communist system. Marx’s prognosis, however, has not come to pass,

because capitalism had mutated into something Marx himself had never imagined.

Capitalism in Europe had evolved to accommodate the interests of the workers who

now enjoy human rights and the amenities denied them in earlier versions of capitalist

societies.

But certain undesirable characteristics of capitalism as practiced in earlier

centuries continue to plague humanity, specially in those parts of the world

designated by the euphemism “less developed countries.” Partly as a consequence,

Marx’s criticism has remained to continue to haunt and tantalize humanity. Its

persistent theme of a social dichotomy is being justified by the irrefutable realities in

the less developed countries and have buttressed the tension between, on one hand,

the legal instrumentalities of the state represented by government and, on the other

hand, the moralistic contentions of civil society with its notion of “natural solidarity.”

Whose role is more determining, that of the state with all its legal instruments to

impose coercive order or civil society with its natural drives? Would society be better

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off under the administration of the state, or would it not be better off if the state is to

be inhibited somehow and to subordinate itself to allow civil society? Apparently, for

Marxists, the second possibility is more acceptable.

It must be recalled, however, that a “dictatorship of the proletariat” was

successfully implanted in what then the Union of Soviet Socialist Republics. But it

turned out to be just as wicked as past capitalist rulers. The surprising demise of the

Soviet Union was actually inevitable. It was an aporia (no way out) because it failed

to respond to the need for appropriate social reformation.

The installation of the “dictatorship of the proletariat” in the Soviet Union was

not much different from a coup d’etat committed by a certain group, commonly by a

military group or supported by military power against the government which was at

that time regarded as legitimate and legal repository of state powers. In principle,

however, a coup d’etat is not similar to a “proletariat revolution” whose aim is to

reject the state as an institution, whereas in a coup d’etat aims merely to replace a

ruler for some reasons without dismantling the state and its instrumentalities.

Civil disobedience does not pretend to reform the government or the state, or

even to give and provide an alternative, as it is only a mode of expression of

disagreement over certain laws deemed immoral or oppressive. Civil disobedience

also does not reject the ruling government or even the state per se, but only rejects

one or several of existing law enactment. In this light, civil disobedience rejects

antagonism, which opposes civil society and the state. Hence, the position of civil

disobedience lies on the same sphere with the idea of civil society to which it has

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become a very actual issue. As “Civil Society” aims only at promoting relational

autonomy amongst citizens in any forms but not the whole, but without neglecting or

rejecting the state’s authority as a whole, civil disobedience does not aim at denying

the state or even the ruling government, but only advocates individual or collective

autonomy and existence to be taken seriously and respected by state.

Problem of Civil Disobedience

Of the assumptions mentioned above, it is apparent that law generally must be

obeyed. Law which is not obeyed would result in erosion of the authority of

government and thus weakening the state. The result of ineffectiveness over a system

of security enforcement and the overwhelming violence in a state indicates the

weakness of law enforcement. Law is no longer frightening or coercive anymore

because it lost its authority. This condition is more or less caused by the practice of

impunity of high officials in regard to the enforcement of laws on Corruption,

Collusion and Nepotism (KKN) in Indonesia. Such impunity became a reason for

lesser people to commit crimes of various types, such as violence. Law is no longer

anymore sacred because it had been frequently devalued.

Whether by high officials or by ordinary peoples, a crime is a crime and

should not be tolerated. How are we to classify civil disobedience in the context of

the law? What is the place of civil disobedience in social life?

In order to answer the question, we will utilize the formulation of Robert T.

Hall. According to Hall civil disobedience is an action against or in defiance of the

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government or the state for a moral reason. A form of civil disobedience is refusal to

implement an obligation which is imposed by the law or state regulation because one

feels or realizes that the law or the regulation is in conflict with morals and therefore

non-obligatory. Thus, as also mentioned above, civil disobedience is more of a

movement, rather than a political theory or moral teaching.8

Civil disobedience does not function to theorize or to teach anything. It only

means to express a protest or a disagreement. Thus, Hall’s notion of civil

disobedience is different from that of Abe Fortas (1968) as it only mentions two

substantial elements, namely illegality of its action and moral motivation. Fortas, on

the other hand, mentions a variety of requirements so that an action could be

classified as civil disobedience. To name some, the actor must be willing to bear the

risk of punishment or penalty because of offences, his action must be public in nature

so that it is publicly known and it must be implemented with no violent measures.9

Following Hall’s formulation, it is substantially to say then, that “civil

disobedience was actually pioneered by the early Christian martyrs in the first

century, when they opposed the Roman emperor and preferred to die in the

amphitheatrum. By that such death, they constituted that obedience to God was kind

of higher moral conviction than obedience to an emperor’s command. In this view,

religious reasons can be equated with morals because in civil disobedience moral

motivation is not limited to certain criteria of the academe. The important thing is for

8 R.T. Hall, Ibid, p. 14.

9 Abe Fortas, Concerning Dissent and Civil Disobedience, New York: Signet Books 1968, p. 57-71.

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the actor to wholly realizing his objective. But courage to assume risks, even to death,

was not calculated by Hall as a necessary part of civil disobedience. This is

understandable because an actor in civil disobedience will not necessarily have a fate

similar to the martyrs of the Roman Empire. In modern democratic countries an actor

in civil disobedience may even be regarded with honor. An obligation rejected by

civil disobedience may even be recompensed with another form of social obligation

that is acceptable. For instance, “military obligation” recompensed with an

alternative obligation, or even with money. Although civil disobedience can be traced

to ancient martyrs, the term civil disobedience began to be known around the 19th

Century when the state became stronger and society became weak. The corporate

bodies commonly recognized in the Medieval Age had been disbanded and no

substitutes came into existence. The state then became the only institution with the

coercive instruments to impose its will on the citizens. Civil disobedience flourished

in America in the 19th Century basically as a movement for the abolition of slavery. It

opposed the state’s constitution by way of protecting black slaves who had escaped.

Can civil disobedience be publicly as contrary to law? In a case of hiding a

slave who was declared fugitive, defiance of a statement was not thought to be an

unlawful characteristic of civil disobedience as it was in accord with the intention to

help, which was a moral obligation. This was similar to those who provided

protection for the Jews in Germany during Hitler’s reign. Of course they had violated

a prevailing law, which they considered tyrannical and which put them in great peril

The famous teacher of civil disobedience was, of course, Mahatma Gandhi

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from India. Gandhi through the movement of civil disobedience went against the

British government in Transvaal, South Africa, because of discriminative constitution

and an anti-Asian bias. Gandhi was threatened with prison. However, he did not stop

fighting against that constitution and called for non-violence resistance. Gandhi

initially called it “passive resistance,” although he subsequently changed it to

“satyagraha.” Gandhi was eventually jailed for two months because he did not want

to leave for Transvaal. Gandhi continued with his mode of protest upon his return to

India, and his non-violent method eventually adopted by civil disobedience

movements in many places. Non-violence has since then become a substantial

feature of civil disobedience.

A non-violent mode of conduct is certainly a very good thing, but Hall

remains content that “with no violence” is not also really a specific character of civil

disobedience. Hall mentions the case of John Brown’s attack to gun’s storehouse at

Harper’s Ferry.10 In the case of Indonesian history, we also recognize violent cases

committed by the state, especially in the dictatorial government or military regime

during Soeharto’s era. That violence can be so neatly and systematically arranged and

incapacitated the whole of Indonesian civilian life. I think Hall’s argument can be

understood. However in this case, moral reasoning must be made more careful

because of its widespread implications. Civil disobedience can turn to resentment.

Can civil disobedience limit itself to assure non-violent action by society against the

government?

10 R.T. Hall, op.cit., p. 16.

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From the variety of difference between Hall’s and Abe Fortas’ conception of

civil disobedience, it is manifest that Hall’s notion on civil disobedience is a minimal

formulation, while that of Abe Fortas is more encompassing and therefore more

precise. Their difference appears to indicate a different attitude towards civil

disobedience. By presenting a number of requirements that must be met, Abe Fortas

mentions explicit grounds on the morality of civil disobedience. Such an attitude,

however, rather overly circumscribes the spontaneity and response of civil

disobedience against criminality perpetrated by those in charge of government. Civil

disobedience degenerates to nothing more than moralistic exhortations under the

shade of constitutional technicalities that corrupt governments have reduced to an

abominable obfuscation.

Robert T. Hall’s formulation, on the other hand, which is so concise and

simple, allows broad possibilities for action under the rubric of civil disobedience.

Although spontaneity of the action is recognizable in this context, but its moral

underpinning is not as clear. Hall’s formulation appears to be more socio-political in

nature, rather than moral-political. It argues, in effect, that the undertaking of civil

disobedience cannot be justified by a general rule but done on a case to case and on

specific moral foundations.

Conclusion

In a broad perspective of society, the legal order of an established is an

indispensable element in the constitution of a just and viable society. Besides law, the

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quality of collective life is also determined by a variety of other elements, such as,

politics, the economy, religion and education. Distinct from law whose

implementation is the exclusive prerogative of the state, those other these other

elements are not within the domain of the state and do not fall within the purview of

formal law. Justice, therefore, must be perceived in sense broader than just

enforcement of the law, but perceived as an ideal balance of a variety of elements and

interests. This is not to be taken to mean that law can be substituted with any or all

of these other elements but that these elements and the law are to complement one

another. Alone by itself, formal law has no value of its own. Thus a common

presumption that order and justice are exclusive functions of law enforcement is

wrong, because order and justice is the result of synergy resulting from interfiliation

of a variety of social institutions, of which law is only one.11

Therefore, the place of law, while substantial, cannot be absolutized. Thus, while in

general, law must be obeyed, disagreement over law must be resolved not by means

of offence but rather by changes in the law through consensus. The pivotal

importance of the law, however, makes it prone to criminal and anti-social

manipulation by special interests, either to craft laws for their exclusive interests, to

escape punishment for crimes. Where such legal vandalism is allowed to prevail, the

state itself is on way to eventual incapacity. Then civil disobedience movement is

automatically vested with a moral mandate.

Civil disobedience can and ought to be tolerated on moral grounds. But in

11 R.T. Hall, op.cit., p. XII.

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practice civil disobedience can invite reactions. It may get support from various

groups; or it may invite opposition by bona fide” or “male fide”. And a corrupt and

authoritative government can take advantage of such a situation to further its position.

It is true that civil disobedience cannot become a common norm, because of

its spontaneity and casuistic nature as a moral movement. It is not an ideology of

religion, or even a party program. Thus civil disobedience is handicapped from being

promoted systematically. But whether civil disobedience movement will develop

further or not, it has become a sign of the growing awareness of people’s rights. Civil

disobedience movements can therefore be said to be a good start for the rise and

development of civil society.

BIBLIOGRAPHIES

Fortas, Abe (1968). Concerning Dissent and Civil Disobedience, New York: SignetBooks.

Cassesse, A (1994). Hak-hak Asasi Manusia di Dunia yang Berubah [Human Rightsin A Changing World], Jakarta: Yayasan Obor Indonesia.

Magnis-Suseno, Franz S.J. (1987) Etika Politik. Prinsip-Prinsip Moral DasarKenegaraan [Ethics of Politics. Fundamental Moral Principles of Statehood],Jakarta: Gramedia.

Mercado, Leonardo N. S.V.D (1984) Legal Philosophy. Western, Eastern, & Filipino,Philippines: Divine Word University Publications, Tacloban City.

Hall, R.T. (1971) The Morality of Civil Obedience, New York: Harpar Torchbooks.

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Constitutional State and Civil Disobedience

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Transcript of Constitutional State and Civil Disobedience