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Legal positivism must be committed to the view that there is a right to civil disobedience. In some instances, the failure to have a clear legal meaning of civil disobedience rationalizes the need for guaranteeing the citizens the right without prejudice.
From a liberal point of view, the government should endure some level of civil disobedience as long as the subsequent actions do not threaten the state security nor infringes on the civil rights of other people. This means there might be a point at which the state could allow the people to express their views without being victimized. Notably, Legal positivism means that someone’s view should not be mistaken for dishonesty.
In this regard, the person could suffer severe consequences for exposing his ideas to the authority. In this case, the authority may take action against the person’s opinion without evaluating its rationale. Therefore, instead of upholding the person’s dignity, the state might subject him/her to harsh punishment for expressing a view that could be important to the security of the country. Therefore, the paper is a critical observation of the law, and tries to justify the need for, and importance of civil disobedience.
Liberalists argue that the state should exercise restraint when deciding and executing punishment to what they term civil disobedience (Dworkin, 2005). In their argument, it is insensitivity to convict someone for the opinion that according to the government is regarded as disobedience, while for the person; the action is regarded as civil right (MacCormick & Ota, 2010). Therefore, punishing those who are deemed to be civil disobedient must be done within the limitations of its reliability, impartiality and under the policy guidelines of the state.
The other issues considered as very important is the fact that the metal soundness of the person feared to be disobedient must also be considered to avid punishing an insane person (MacCormick & Ota, 2010). Even to the person regarded as insane, he/she cannot be considered disobedient if the action he/she has committed has not been verified to have contravened the country’s legal system. Perhaps, this is the initial step to make the government allow civil disobedience in the state.
Tolerance to disobedience must be with limitation and scope, but liberalized to make sure that the state does not overstep on the rights of the citizens (Dworkin, 2005). Notably, this balance should take care of the implications that rise due to the liberalization of the laws touching on the punishment of people assumed to have engaged in civil disobedience.
Civil disobedience should be accepted as long as the people engaged are such activities are prevented from undue legal prosecution from the authorities (Dworkin, 2005). Other than not being subjected to punishment at all, the charges for their activities should be reduced significantly.
Many of the legal scholars assert that the success of civil disobedience depends on the extent to which the authority courts penalty, other than evading its execution. Therefore, it is within the right of individuals to demand civil disobedience and be guaranteed to get it.
In addition, demanding for this right falls within the moral obligations of the individual and could have numerous implications in the country’s legal arrangement and position (Dworkin, 2005). The citizens have a right to protection and the constitutional provisions because in every day legal practice, the lawyer is always exposed to numerous ethical and/or legal dilemmas.
Ethical legal practice demands that the lawyer uphold ethical responsibilities outlined in the code of ethics of their respective countries to determine the nature of disobedience brought before them. Therefore, they have to assess the ethical principles relating to a case where the lawyer hurriedly decided to lie to the convict concerning his/her case and demand for the right to disobedience (MacCormick & Ota, 2010).
A legal dilemma on the right to disobedience would occur when a lawyer’s decision opposes the laid down rules of the profession and the state laws. Actions relating to civil disobedience would be punishable by law if the person is found guilty of infringing it to those of others (Dworkin, 2005). This stresses the fact that an ethical dilemma would occur when the action violates the values and the morals of the society.
In such cases, the cal for right to disobedience might be curtailed. Contrary to the legal actions that are measured by ethics, dishonesty cannot be measured or defined by law, thus advocating for the right to civil disobedience should only be accepted if the subsequent actions are legal (Thoreau, 2010). Besides, ethics would align more to the individual’s perception of the situation, thus they could not be judged either wrong or right.
Ethical problems, which are involved in agitating for civil disobedience include the conflicts between one or more values forcing the lawyer to be uncertain about the correct course of action. Therefore, ethical dilemma occurs when a lawyer would feel indecision or lack of clarity (Tatek, 2010). It could also occur when the lawyer would be unable to identify the moral problem in the case h/she is handling but would feel uneasy.
The problem that is evident in the demand for civil disobedience would be associated with the issue of ethical distress and should be addressed before the demands are considered (Tatek, 2010). Therefore, the lawyer is presented to have known the right thing that the people ought to have done, but they opted to give false information to achieve selfish end. In such cases where the values and commitments of the lawyer are compromised due to the external influence, the lawyers’ identity and integrity would be affected.
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Legal values would encompass core responsibilities that the lawyers would have to undertake in order to obtain and maintain ethical legal practice (Kramer, 2003). If the rights to civil disobedience are to be guaranteed, the values that accompany it would be prescribed in the legal code of ethics. They would be varied and applicable to different ethical issues depending on the context in which the issues identified would occur (Thoreau, 2010).
One of the values that would apply in this case is the lawyer’s responsibility to promote and respect informed decision making. The lawyers handling such request need to recognize, respect and promote the person’s right to be informed and to make decisions (Kramer, 2003).
Furthermore, the lawyer has a responsibility to provide the person demanding civil disobedience with the information they need to make informed decisions. The information would ensure that the person takes appropriate action relating to the demand and future behavior (Shapiro, 2007). The lawyer in this case, must provide accurate information to either the family or the person.
Another law that could apply in this case would be the provision that the lawyers should preserve dignity at all times while handling the people’s demands (Jabez & Cleef, 2008). The value provision requires that the lawyers should recognize and respect the individual values of each person. In all practical settings, the lawyers should ensure that they satisfy the people’s demands by providing appropriate and effective judgment for cases before them.
They should also support a dignified and peaceful passage of the right to civil disobedience. It could be argued that this would be the reason to clarify the lawyer’s decision to tell lies and pass wrong judgment for the people agitating for civil disobedience, since such decisions do not promote the aggrieved person, neither does it guarantee comfort (Jabez & Cleef, 2008).
The other value that could be related to, and support the quest for civil disobedience would be the need for the lawyers and people to be accountable. Indeed, it provides that the lawyers and the people should always be accountable for their actions as well as answerable to their practices (Shapiro, 2007).
In referring to this value, lawyers are ethically expected to be honest as well as practice with integrity in their professional work, while the people should be cautious when putting across their demands. Lawyers are also expected to practice within the limits of their competence to understand and rationalizes the people’s civil demand, thus preventing biasness when performing their duties (Kadish & Kadish, 2010).
When the demands are beyond their level of competence as shown in this scenario, of the right to civil disobedience, the lawyer should have referred the question to other relevant bodies to avoid the ethical liability involved in giving false information to the aggrieved.
Self-deception has been dominant in pushing some people to placing such demands, as anticipated in the field of psychology (Sebok, 2008). Though the psychologists have questioned the logic behind the issue of rights to civil disobedience, the belief formation and the subsequent generalities are clarified in the theory of self-deception. According to psychologists, the issue raises the following two logical difficulties (Kadish & Kadish, 2010).
First is the fact that the ease of framing an evolutionary motive to view self-deception as a mechanism to foster other-deception is not determined and secondly, is that given the fact that after one has succeeded in deceiving oneself, the other people would not be able to detect the deception thus, it would be illogical to conclude that self-deception evolved to facilitate the deception of others. Generally, this would make one feel that demanding for the right to civil disobedience is normal and one should be guaranteed that right (Kadish & Kadish, 2010).
While taking an evolutionary approach to self-deception, the proponents argued that self-deception is a process that begins from inside the person lying to the recipient and then back to oneself, thus believing that his/her demands are right (Shapiro, 2007). The psychologists further argue that self-deception evolved to facilitate other-deception. Moreover, they say that it is possible since self-deception enabled people to avoid lie detection mechanisms and thus propagating interpersonal deception (Shapiro, 2007).
In this case, the person literally believes that being disobedient is not a crime, and he/she should be granted this by the law (Kadish & Kadish, 2010). They also argued that in the same manner that people deceive others by either avoiding the truth, or exaggerating the truth, people can also deceive themselves by thinking that being disobedient is virtual.
The proponents of the rights to civil dishonesty also argued that self-deception comes as a result of biases in information gathering and not by possessing contradictory beliefs (Campbell, 2004). They said that if a person sincerely believes in something and expresses that thing to someone else, the expression does not amount to lies despite the fact that the belief is false. In order to be a liar, the person must be aware that whatever he/she is expressing is false. This premise has been faulted.
Despite the above contradictions, the proponents who argue for the rights to civil disobedience have been successful in illustrating that a person’s belief develops in ways relative to his motives (Sebok, 2008). The fact that biased the beliefs result in social gain has also been fully developed and support in the article.
They mentioned and supported the fact that self-deception results in elimination of the costly cognitive load that would be typically associated with deceit, thus the people advocating for the right to dishonesty are justified to do so (Campbell, 2004). The other advantage from their argument is that self-deception would minimize vengeance in case the lie is detected.
In conclusion, the rights to civil disobedience is genuine and could be conclusively examined by assessing the psychological status of the person placing such demands. The beliefs that civil disobedience is illegal should be eliminated and be subjected evaluation, interpretation and conclusion rather than taking side that it is unlawful.
This way, the argument would be focused on questioning the assumptions that the beliefs on civil disobedience are very useful and true. Therefore, the current arguments that the people are agitating for the rights to civil disobedience is correct are justified provided that the activities do not infringe on the rights of the others.
Campbell, T. (2004). Prescriptive Legal Positivism: Law, Rights and Democracy. London: Routledge.
Dworkin, R. (2005). Taking Rights Seriously. New York, NY: Wiley.
Jabez, L. & Cleef, V. (2008). Human Rights and Civil Disobedience. Kindle: Kindle Books.
Kadish, S & Kadish, M. (2010). Discretion to Disobey. New York, NY: Quid Pro.
Kramer, M. (2003). In Defense of Legal Positivism: Law Without Trimmings. Oxford: OUP Oxford.
MacCormick, N. & Ota, W. (2010). New Approaches to Legal Positivism. New York, NY: Springer.
Sebok, J. (2008). Legal Positivism in American Jurisprudence. Cambridge: Cambridge University Press.
Shapiro, S. (2007). The “Hart-Dworkin” Debate: A Short Guide for the Perplexed. Michigan: University of Michigan Law School.
Tatek, M. (2010). A Critical Analysis on Legal Positivism: and the separation of law and Morals. New York, VDM Verlag.
Thoreau, H. (2010). On the Duty of Civil Disobedience. Kindle: Kindle Books.