In 1970, the Sydney Morning Herald published an article entitled “How should we react to unjust laws?” Ilmar Tammelo argued in this article that defiance of an allegedly “unjust” law leads to “awkward practical consequences” because “on critically important occasions, it may be extremely difficult to ascertain what is just and what is unjust.” However, other commentators such as Marcus Tullius Cicero and St Augustine of Hippo have argued that there is a right to disobey an unjust law. This raises the question: “Is there a right to disobey a valid law?” and if so, what requirements have to be met to justify the disobedience of a valid law?
The COVID-19 pandemic and Australia’s response to it provide a poignant example of the practical implications of these questions. During the pandemic, protestors deliberately violated the often-draconian emergency regulations, believing that the COVID-19 emergency laws were incompatible with paramount rights, including the right to association, the right to freedom of movement, and many others. They questioned whether Australia could still be described as a liberal democracy because the government introduced vaccine and mask mandates, prevented citizens from entering or leaving their own country, deployed the military to enforce these rules, banned protest, and arrested and fined dissenters.
In order to assess an act of defiance, it must be judged on its “rationality.” This means that the act must be judged by its effectiveness and its prospect of success. Additionally, the higher principles relied upon as a justification for defiance must be balanced against others, and the lawbreaker must be willing to accept the penalty imposed for breaching a valid law. Finally, the act of civil disobedience must be proportionate to the alleged injustice that caused a person to disobey the law. During the COVID-19 pandemic, many of the emergency measures adopted by governments around Australia were unnecessarily authoritarian and, therefore, the protests may have been a proportionate response.
Civil disobedience becomes a societal problem when the normal channels of social change do not function properly, or when serious grievances are not heard. When the opportunities for change provided by the legal system are deficient, civil disobedience is often an effective and expeditious way to challenge the law. Martin Luther King, Jr. provided the perfect answer to the question, “How can you advocate breaking some laws and obeying others?”: “The answer lies in the fact that there are two types of laws: just and unjust. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws.”
For these reasons, civil disobedience has an important role to play in Australian society: in times of practically uncontrolled governmental power, people have a right to civil disobedience. Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.