Turenne. Judicial responses to civil disobedience. A comparative approach.pdf

8/12/2019 Turenne. Judicial responses to civil disobedience. A comparative approach.pdf

http://slidepdf.com/reader/full/turenne-judicial-responses-to-civil-disobedience-a-comparative-approachpdf 1/21

SOPHIE TURENNE

JUDICIAL RESPONSES TO CIVIL DISOBEDIENCE: A COMPARATIVE

APPROACH

ABSTRACT. In this paper, I compare the extent of Anglo-American judicial

engagement in response to civil disobedience with that of the French judiciary. I begin

by examining what the civil disobedient can realistically expect to achieve in a court of

law. I shall argue that hispriorityshould be to require thejudge, actingas a mouthpiecefor the law, to respond to his complaints. To do this, the civil disobedient must be able

to deny liability for the offence he has allegedly committed by urging a different

interpretation of the law on the basis of an alternative – but plausible – reading of

constitutional or human rights. If the civil disobedient can do this, he can claim a

victory of sorts, even if his claims are ultimately unsuccessful. But legal culture can

present a further barrier. Judges have different roles in different jurisdictions and

therein lie further difficulties for the French civil disobedient.

KEY WORDS: civil disobedience, constitutional rights, Cour de cassation, human

rights, interpretation

In this paper, I explore what the civil disobedient should expect to

achieve in court. This might strike some as surprising. If it is part of the definition of civil disobedience that the disobedient knows that he

is breaking the law, then surely he also knows what to expect if he is

summoned to appear in court – viz. conviction and punishment, if he

has committed a criminal offence. Moreover, that would not neces-

sarily concern him, since his aim might be to make a political point in

the strongest way possible (the decapitation of the statue of Margaret

Thatcher springs to mind here).

Many a civil disobedient would actually welcome an appearance

in court; indeed to become the subject of prosecution might even

have been his primary objective, for he may perceive her trial as a

suitable platform for the expression of his moral or political views.

The judge and jury will be required to listen to him, and he mayalso hope that the media will attend his trial and report her views

to the public at large. But, in this respect, he may be seriously

disillusioned. The judge and jury will not be required to listen to

everything he has to say. If his views are irrelevant to the legal

question of whether he has committed an offence, he will not be

permitted to express them and, in any event, the jury will be told

Res Publica 10: 379–399, 2004.

2004 Kluwer Academic Publishers. Printed in the Netherlands.



to dismiss them. Perhaps his views will, or should be, relevant to

the mitigation of his sentence upon conviction,1 but he would

hardly have looked forward to having his day in court merely to

plead for mercy.

In this article, I shall dissect the notion of civil disobedience. Only

the disobedient whose action is motivated by a plausible interpretation

of human rights which, if correct, would have justified his act (or

would at least have required the state to refrain from prosecuting

him) can expect to be allowed to express his views in court. Even this,

perhaps modest, conclusion is contingent upon the prevailing legal

culture.2 The disobedient is likely to be heard in court – whether or

not he is ultimately successful – in England or America; but in the

positivist French courts his arguments will not be openly entertained

at all.

THE RELEVANCE OF HUMAN RIGHTS FOR CIVIL DISOBEDIENCE

I am not here arguing for a radical interpretation of civil disobedience. I

agree with those who define civil disobedience as an act performed

deliberately, in knowing violation of the law, because the actor has a

different moral or political view of what the law should be, or of the

policy objectives that politicians should be pursuing. Further, the act isdone publicly (that is, the actor does not seek to hide what she has

done). It is typically not violent3 and it is done accepting the possibility

of punishment, but in the hope that the disobedient can persuade others

that the objectionable law or policy should be changed. I agree too that

civil disobedience can be either direct or indirect. It is direct when the

actor violates the very law with which she disagrees: e.g. she may smoke

cannabis because she disagrees with its criminalisation. It is indirect

when the target of the disobedient’s protest is something other than the

1 R. Dworkin, Taking Rights Seriously (London: Duckworth, 1977).2

John Bell defines a legal culture as ‘a specific way in which values, practices, andconcepts are integrated into the operation of legal institutions and the interpretation

of legal texts’, in ‘English Law and French Law – Not So Different?’, Current Legal

Problems (1995) 63–101, p. 70.3 See esp. M.J. Falco ´ n Y Tella, ‘Un droit a ` la de ´ sobe ´ issance civile ? Quelles

conse ´ quences juridiques?’, Revueinterdisciplinaire d’e tudes juridiques, 45 (2000), 87–99;

G.H. Bedau, Civil Disobedience in Focus (London: Routledge, 1991) and ‘Civil Dis-

obedience’, in ed. R. Chadwick, Encyclopedia of Applied Ethics (New York: Academic

Press, 1998).

380 SOPHIE TURENNE



law she breaks: e.g. she may trespass onto a military base to protest

against a war, in which case it is the war, rather than the law of trespass,

that is the object of her complaint. The trespass is merely her way of

expressing her political views. The decapitation of Margaret Thatcher‘s

statue is another example of indirect civil disobedience, for it was

capitalism, rather than the law on criminal damage, that was the target

of the decapitator’s act. In all such cases,however, the aim must be legal

or political change. A person who refuses to perform compulsory

military service because he personally disapproves of fighting (i.e. she

conscientiously objects to war) seeks only a personal exemption – she

does not necessarily disagree with the general principle of conscription.

His refusal to perform military service would count as civil disobedi-

ence only if it manifested the beliefthat no one shouldbe required by law

toserve in the army or to support the systemby optingfor analternative

form of service.4

However, whilst accepting this broad definition of civil disobedi-

ence, I would argue that only in a subset of such cases could the dis-

obedient hope to air his dissenting views in court. For that purpose, I

distinguish between cases in which the law is challenged on moral or

politicalgrounds andcases in which theinterpretationof thelaw itself is

at issue. Thus, the poll tax instituted by Margaret Thatcher was alleged

to be unfair, but not unlawful, so that refusal to pay it would not

constitute the sort of case I have in mind here. I shall argue that it is onlyin cases based upon interpretation of the law that civil disobedients can

expect judges to engage with their dispute. These are cases in which,

though the disobedient acts knowingly in violation of the law as it has

been traditionally interpreted , he believes that he can argue that this

traditional understanding is wrong and that his act is already lawful . We

can call such cases of civil disobedience ‘intra-legal’.5 Such claims

should not be ignored as irrelevant by the judge. They should be ad-

dressed, even if they are ultimately rejected.

But on what basis can the disobedient argue that the law is wrong?

Judges must follow precedents6 and there is often no room for dis-

agreement as to what the law is. No one, until recently, could seri-

4 J. Bengoextea and J.I. Ugartemendia, ‘Civil Disobedience as Constitutional

Patriotism’, Legal Studies 17 (2000), 434–47.5 I am grateful to Peter Jones, who suggested this phrase for the concept to which

I am referring here.6 That is, in England; other countries are more likely to have codified their

criminal law and other legal principles.

381JUDICIAL RESPONSES TO CIVIL DISOBEDIENCE



ously have doubted that the possession of cannabis for religious

purposes was as much of an offence as its possession for any other

purpose (apart from purposes connected to law enforcement). Thus,

the disobedient must be able to point to some principle or principles

which, in his view, over-ride the law as currently applied and which

open that law to more than one interpretation. These overriding

principles will be based upon constitutional and/or human rights. To

my mind, then, judges should be able to engage with civil disobedi-

ence only when the disobedient’s claim concerns the legality of the act

he committed (or rather, its criminalisation under the law as presently

interpreted ) from the perspective of a different interpretation of

rights. I shall focus in this article upon human rights, since they

represent a common set of values for European lawyers; but consti-

tutional rights, where a country has a written constitution, also

present opportunities for disobedients to present their arguments in

court. The open-endedness of human or constitutional rights seems to

allow plausible interpretations of human or constitutional rights to be

raised by disobedients in most domains of the law. So, if a person

who has arguably exceeded the boundaries of reasonable force in self-

defence wishes to defend herself on the ground that he thought that

she should be allowed to use such force under the law of self-defence

(e.g. lethal force against a burglar), then even he could be said to be

invoking the scope of his (human) right to life.7

Some might think thata right to self-help in the event of the failure of the state to fulfil its

duty of protection would raise constitutional issues as well. So the

disobedient would at least be appealing to a human or constitutional

right in arguing about the proper scope of the liberty of self-defence.

Whilst it is accepted English law that she cannot act upon a divergent

interpretation of self-defence,8 the point for present purposes is that

she ought to be allowed to argue that her own interpretation is in fact

the legally correct one. Someone in this position can be characterised

as a civil disobedient who is arguing for a different interpretation of a

human or constitutional right.9

Focusing upon acts which, set in the context of human rights, are

at least arguably non-criminal is the clearest way to distinguish these

7 See Article 2 (2) of the ECHR which permits lethal force which is ‘absolutely

necessary ... in defence of any person from unlawful violence’.8 R v Owino [1996] 2 Cr App R 128.9 He might thus become entitled to a reduction in sentence, even if his claim is

rejected and he is convicted, as I go on to suggest.

382 SOPHIE TURENNE



cases of civil disobedience from cases of ‘resistance’. In France, the

right to resist oppression is ‘natural and imprescriptible’ (Article 2

DDHC 1789). However, despite the constitutional enshrinement of

the right of resistance, rebellion against the positive law cannot be

lawfully grounded upon this right of resistance,10 but would remain

founded upon a moral and political right of resistance. For a lawyer,

this means that the ‘right’ of resistance is unenforceable, a conclusion

supported by its narrow legal definition as the duty of a civil servant

to disobey (only) an illegal order.11 ‘Intra-legal’ civil disobedience,

however, seeks to challenge the positive law from within the law itself,

by appealing to wider legal parameters. It is dissent ‘against the law,

within the law’ that characterises this type of civil disobedience.12 It

seeks a balanced point at the boundary between the legal and the

illegal: those who practise this type of civil disobedience are trying to

‘loosen’, ‘enlarge’ or even ‘exceed’13 society’s legal system rather than

to overthrow it.

Intra-legal civil disobedience is thus distinct from any notion of

resistance14 insofar as it resorts to legal protest, and may include

resort to petitions and judicial review. This explains too why civil

disobedience must be non-violent and an act of last resort used only

when other democratic mechanisms, such as voting, have failed to

achieve the legal reform that is sought, characteristics which need not

be definitive of resistance. It also means that civil disobedience

10 S. Goyard-Fabre, ‘Le ‘‘peuple’’ et le droit d’opposition’, Cahiers de philosophie

politique et juridique 2 (1982), 69–85. Seefurther J.-F. Spitz,‘Droit de re ´ sistance‘, in eds

Ph. Raynaud and S. Rials, Dictionnaire de philosophie politique, 145–52; P. Wachs-

mann, ‘Un sujet de droit peut-il se revolter?’, Archives de philosophie du droit 34 (1989),

89–102.11 Conseil d’Etat, Langneur, November 1944, in J.-F. Lachaume, Les grandes

de cisions de la jurisprudence, (Paris: Presses Universitaires de France, 1999) ; E. Des-

mons, Droit et devoir de re sistance en droit interne. Contribution a ` une the orie du droit

positif (Paris: Librairie Generale de Droit et de Jurisprudence, 1999).12 T.R.S. Allan, ‘Citizenship and Obligation: Civil Disobedience and Civil Dis-

sent’, Cambridge Law Journal 55 (1996), 89–121. Allan’s claim relies upon the rea-soned and morally inclusive nature of legal obligations. He originally used the

expression to argue that a journalist’s refusal to disclose his sources could be plau-

sibly understood as a claim about the nature of the legal obligation to disclose his

sources, a claim ‘within the law’, ‘based on a different but eligible interpretation of

what the law truly requires’: see ‘Disclosure of Journalists’ Sources. Civil Disobe-

dience and the Rule of Law’, Cambridge Law Journal 50 (1991), 131–61, p. 151.13 F. Proust, De la re sistance (Paris: Presses Universitaires de France, 1997), 158.14 Ibid., 176.




illustrates a democratic paradox: civil disobedients disobey the law,

but not because they hold the law as such in contempt. On the

contrary, they are working upon the same basis – human rights – as is

the legal order itself. It might also follow that this type of disobedi-

ence should not be interminable.15

This strong connection between rights and civil disobedience has

been most forcefully argued by John Rawls and Ronald Dworkin.

Rawls usefully integrates civil disobedience into his theory of justice by

understanding acts of civil disobedience as cogs in the machinery of

liberal democracy.16 For Dworkin, civil disobedience is a method of

last resort for protecting human rights. Most interestingly, Dworkin

requires civil disobedients to show that their acts of disobedience are

grounded in a ‘plausible’ interpretation of a constitutional right en-

trenched in the US Constitution.17 Civil disobedience thus relies upon

what has been described as the ‘fuzzy’ nature of human rights18 and the

consequent legal variations in their construction and implementation.

It follows, for Dworkin, that judges should be lenient towards civil

disobedience; though a judge should uphold the conviction, she may

lighten the sentence. Dworkin would not, however, grant the civil

disobedient a legal defence per se. Like other jurists, he is concerned

only that thedefendant shouldbe able to put his different interpretation

of the human right in question before the courts. Thus, a Rastafarian

who claimed that he should not have been prosecuted for possessingcannabis his was able to argue before the trial judge, and again on

appeal, that his right to worship was being violated.19 Whilst the

15 It might be thought that, if the contested interpretation of the law fails after a

fair and balanced judgement has been given, the disobedient should, in consistency,

accept defeat and not repeat his offending conduct; but this need not be so. At least,

the point is open to argument. See below.16 A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971).17 R. Dworkin, Taking Rights Seriously (London: Duckworth, 1977), 208–10.

Dworkin distinguishes various types of civil disobedience for the purpose of devel-

oping different types of moral justification within a theory of civil disobedience – see

his A Matter of Principle (Cambridge, Mass.: Harvard University Press, 1985), ch. 4.But he finally argues that all morally justifiable types of civil disobedience could

further be understood as resting upon proper alternative interpretations of the

American or German Constitution, insofar as these Constitutions recognise abstract

political rights as legal rights and are therefore subject to a potentially wide inter-

pretation (Matter of Principle, 115–16).18 M. Delmas-Marty, ‘Vers une autre logique juridique: a ` propos de la jurispru-

dence de la Cour europeenne des droits de l’homme’ Dalloz 1988, chr. XXXV.1.19 R v Taylor (Paul) [2001] EWCA 2263.

384 SOPHIE TURENNE



judges ruled against him they did engage with his arguments and

references were made to opinions from narcotic agencies and

health organisations in reaching the conclusion that the harm

presented by drugs was sufficiently serious to justify the prohibi-

tion of their use even for religious purposes. It is interesting too

to note that the Court of Appeal reduced the defendant’s sen-

tence, though not expressly on account of his different interpre-

tation of Article 9 of the European Convention on Human

Rights.20

This link between rights and ‘intra-legal’ disobedience makes

sense in the light of Dworkin’s figure of an enlightened judge,

Hercules, who is able and willing to discuss the merits of the law

openly in his judgement. The open texture of human rights,21

which expresses the indeterminacy of language at the origin of the

recognition of ‘hard cases’, also expresses the crucial role played by

judges in justifying their solution. Thus, in the case of a ‘right to

housing’, said by some in France to derive from the human right

to dignity, a direct conflict with the right to property would be

avoided by a judicial reasoning in situ, that is, by a balancing of

the competing interests of property and the social need for housing

in a case by case approach.22 Dworkin’s theory of civil disobedi-

ence is thus characterised, first, by a commitment to fundamental

rights and, second, by the assumption that it is up to the authorityof the courts – following the model of the US Supreme Court – to

ensure the enforcement of human rights. Consequently, civil dis-

obedience can be seen as a judicial ‘hard case’ relating to the

enforcement of human rights.

There are further reasons why engagement with human rights

or, where they exist, with constitutional rights, is central to the

European civil disobedient who seeks a change in the law. The

European Court has declared that the rights set out in the Euro-

20 There was, after all, little to suggest that the defendant was in the business of

campaigning for legal change, or had even heard of Article 9 of the ECHR, before

his arrest.21 H.L.A. Hart, The Concept of Law (Oxford: Oxford University Press, 1997), chs

5–7.22 See the case study by H. Pauliat, Le droit de proprie te dans la jurisprudence du

Conseil Constitutionnel et du Conseil d’Etat (Limoges: Presses Universitaires de

France, 1994). On the right to housing, see below.




pean Convention constitute ‘the essential grounds of a democratic

society’.23 They tend to be supreme, the ‘unifying reason’ (raison

unificatrice)24 of European legal thinking, a federating element of

European societies.25 Acting on behalf of human rights seems

therefore to make consideration of the civil disobedient’s claims

imperative.26 They are flexible; that is, their implementation renews

the substance of the law. Indeed, the abiding character of human

rights is necessarily preserved by their open-ended nature. The

proper scope of a person’s right to privacy, for example, is clearly

a malleable concept that should be revisited as social expectations

change and develop over time. It is open to the disobedient to

claim that the right to privacy should be interpreted so that it

includes, say, an unqualified right to abort a foetus. That right

may not have been recognised hitherto by the European Court of

Human Rights, but the disobedient may argue that the time has

come for the right to privacy to be re-interpreted in that way.

Indeed, the European Court of Human Rights has emphasised the

need to construe human rights ‘in the light of the current condi-

tion’27 of society. Thus, human rights are sufficiently flexible to

make possible the change that the disobedient is seeking and only

the possibility of change should be necessary for her to secure her

objective of presenting her views in court. Finally, there are many

legal philosophers who might say (from a non-positivist perspec-tive) that the correctness of a particular interpretation of human

rights can only be asserted; it cannot be declared as if it had some

objective legal force. ‘Knowing the language of the principle – ‘‘it

is unjust to punish an innocent person’’ – does not tell us how

much weight to accord it in particular situations’, writes George

Fletcher,28 and judges have no extra wisdom in such matters. Their

23

Handyside v UK (1976) 1 EHRR 737.24 A.J. Arnaud, Pour une pense e juridique europe enne (Paris: Presses Universitaires

de France, 1991).25 M. Delmas-Marty, Pour un droit commun (Paris: Presses Universitaires de

France, 1994), 186.26 P. Collas, ‘Les droits de l’homme, victimes de leur succe ` s?’, Revue de la

recherche juridique (1998), 1319–45.27 Handyside v UK, op. cit.28 ‘Two Modes of Legal Thought’, Yale Law Journal 90 (1981), 970–1004, p. 978.

386 SOPHIE TURENNE



judgments merely assert views on principles and always remain

subject to further argument.29

THE ‘PLAUSIBILITY’ OF A HUMAN RIGHT

I began this article by suggesting that a civil disobedient can be heard

in court only if he is arguing for a plausible interpretation of a human

(or constitutional) right, which has legal relevance to his case. As we

have seen, human rights are malleable, and can be developed to

encompass new legal territory. Even so, the civil disobedient’s initial

task may be to persuade others that his protest is one that actually

relates to human rights. What, then, is meant by ‘plausibility’; or

indeed by a ‘human right’?I suggest that the ‘plausibility’ test as it applies to an inter-

pretation of human rights should require only that a minority of

members of the legal community – academics, judges and practi-

tioners – agree that the interpretation pursued by the disobedient is

plausible. That will entail that the line of argument presented by

the disobedient has not already been confronted and rejected by

the courts and that the interpretation is not obviously at odds with

the law of all civilised nations. The threshold should be suitably

low, since the effect of crossing it is only that the judge shouldhave to consider the disobedient’s argument – the judge’s conclu-

sion (e.g. that a person’s right of religious worship does not suffice

to create a new defence for the possession of cannabis) may still be

predictable.

It may be more difficult to decide whether a human right is en-

gaged at all. Is a person who believes that fox hunting should be

lawful really able to argue that her right to privacy is invaded by a

ban on hunting? In a case such as that, the human rights dimension

seems marginal to the political one; but we are likely to find it hard to

decide to what degree the rights dimension, as opposed to the

political, must be at stake. Reflection upon military service raises

similar difficulties. Suppose that a state introduces conscription to

pursue a war that many of its civilian citizens regard as unjust. If

29 As Fletcher writes, ‘We can assert the truth about [one interpretation of a right]

and even make a persuasive case for our position. A consensus might emerge for

[that] particular conception [. . .]. But the consensus can be at most tentative. A better

vision of [the right] always remains possible’-op.cit., 982.




some people refuse to comply with conscription because they believe

that the use of compulsory military service to pursue an unjust war is

wrong (both for themselves and for everyone else) should their refusal

qualify as civil disobedience? The disobedient is unlikely to base her

claim upon freedom of thought, since, if that were to be the basis of

the claim, she would probably object to military service under any

circumstances. But she may claim that her right to life is at stake.

That is, she may claim that the state has the right compulsorily to

subject her to risk of death in the service of her country only if the

cause is necessary and just – and that the mere fact that the gov-

ernment of her country happens to view it as necessary and just is not

enough to establish that it is indeed necessary and just. An argument

of this sort uses the language of rights, but really raises much broader

moral and political issues concerning the justifiability of war per se.

Can it count as a plausible interpretation of a human right that she,

and others in the country, should not be required to perform military

service?

The solution to these questions must lie in what I shall call the

‘fidelity’ principle. It is true that those who have framed human rights

texts, including the English lawyers who were instrumental in draw-

ing up the European Convention on Human Rights in 1950, have

used deliberately open-ended language, not least so that other

countries could more readily be persuaded to sign up to the Con-vention. Even so, there are certain laws that no (well-advised) gov-

ernment could have expected would be affected by human rights

legislation, because no human right dimension of those laws was

apparent. Where this is the case, the fidelity principle should prevent

us from accepting that a human right is involved. No country could

have thought that its sovereign right to declare war would be affected

in any way by its acceptance that its citizens had a human right to life;

at the very least, the burden of showing that this is not so must fall

upon those who assert otherwise.

Cases in which the issue is whether a human right of any sort is

at stake should be distinguished from cases of another sort: those

in which a human right is involved, and in which a government

should reasonably have expected that it would be involved, but in

which the human rights claim is defeated by overriding factors. In

the case of the Rastafarian who wishes to smoke cannabis, one can

point to the facts that his religion is recognised and that its doc-

trine bears directly upon the act in question. In accepting the

human right to freedom of religion, the government must have

388 SOPHIE TURENNE



accepted that prohibitions of this sort would be challenged – even

if it had full confidence that the judiciary, after balancing the

competing concerns, would support its decision to criminalise. So a

challenge to the prosecution brought against the Rastafarian is

consistent with Article 9 of the European Convention, and many

would think that the Rastafarian’s interpretation of the balancing

required by that Article is ‘plausible’. None of this is affected by

judicial affirmation of the law as it was already understood to be.

Neither the claim that a human right is at stake nor the ‘plausi-

bility’ of the Rastafarian’s interpretation is inconsistent with the

judiciary’s upholding the existing interpretation of the law. The

important point, for present purposes, is that the court should

address the objection raised by the disobedient and, if it rejects

that objection, it should justify as well as affirm the established

interpretation of the law. This also means that authoritative

determination by the courts of the interpretation of a right will not

prevent a plausible argument from being repeated by the disobe-

dient- for as long as the reasoned deliberation at the origin of the

determination remains inconclusive for lack of plausibility of the

disobedient’s argument. Plausible arguments, then, might legiti-

mately be defeated, but this is not to say that the unsatisfied

disobedient need never accept defeat: he should do so only when

his arguments cease to be plausible and become purely wishfulthinking. This might happen, for example, if the highest court in

the land gives such a clear and comprehensive judgment that no

one can any longer have any doubts about the legal interpretation

given to the right in question.

This approach applies equally to constitutional rights. In

France, the question has arisen of whether a homeless person may

trespass onto private property for shelter. There is no constitu-

tional right to a home and, even if there were, it might be objected

that the right to receive does not entail the liberty to take. That

everyone should have a house has been cited as a ‘constitutional

objective’ and the constitutionality of housing legislation is mea-

sured against that objective.30 However, the constitutional objective

of a right to housing has now been grounded on the principle of

human dignity, stated in the Preamble to the French Constitution

30 Conseil Constitutionnel 19 Janvier 1995, (1995) Actualite Juridique du Droit

Administratif 455.




of 1946.31 It might seem surprising that the constitutional principle

of human dignity should be thought to sustain the ambitions of

proponents of a ‘right to housing’. But, to militant eyes, it is not

unthinkable that the French government should accept that the

right to dignity includes the right to material goods necessary for

dignified living. Following a number of trespass actions by mili-

tants pressing for a right to housing, the shift towards the recog-

nition of some legal meaning to a right to housing can be found in

a few judgements of the lower and appellate courts given during

the 1990s.32 In 1995, for example, a court of first instance held

that some homeless people could be temporarily allowed to occupy

an empty property, on the ground that the value and utility of a

property was greater when it was occupied than when it remained

empty.33 Of course, the fact that judges must constantly balance

the need for housing against the right to property does not mean

that they must regularly find in favour of the claims of trespassers,

but insofar as these claims constitute plausible assertions of the

right to dignity, they should at least receive judicial consider-

ation.34

31 Conseil Constitutionnel 29 juillet 1998, (1998) Actualite Juridique du Droit

Administratif 705; B. Mathieu, ‘Le droit au logement’, in eds D. Gros and S.

Dion-Loye, La pauvrete saisie par le droit (Paris: Seuil, 2002), 215–31, p. 215. The

recognition of the right to housing as a ‘constitutional objective’ provided the

impetus for the approval by the Constitutional Council of the Act of 29 July 1998,

which imposes a tax on empty properties (art. 232 CGI, L. 29 July 1998, art. 51) with

the aim of encouraging the occupation of properties in urban areas where there is a

strong imbalance between the need for housing and the supply of houses, to the

detriment of individuals with modest resources. The 1998 Act also provides for a

mechanism of pre-emption of property by the occupant when the property goes to

forced auction and when the occupant has modest resources (art. L.616 c.constr., L.

29 July 1998, art. 108).32 See the decision by the Tribunal de Grande Instance de Paris, holding that there

is an ‘imperative necessity’ to have the right to housing prevail over the right toproperty (decision of 2 September 1996). See also a similar decision by the Cour

d’Appel d’ Orle ´ ans 19 June 1996, Juris Data 043484; but contra: Cour d’Appel de

Paris 27 November 1997, Dalloz 1998. IR.6.33 See Le Monde, 30 mars 1995.34 See also the need for housing mentioned in the Universal Declaration of Hu-

man Rights of 1948 as part of the requirement of a sufficient standard of life (Article

25, §1) and in the International Convention on Economical, Social and Cultural

Rights of 16 December 1966 (Article 11, § 1).

390 SOPHIE TURENNE



THE ANGLO-AMERICAN JUDICIAL ENGAGEMENT IN RESPONDING

TO CIVIL DISOBEDIENCE

A specific interpretation of a human right, and the reconciliation of

two conflicting rights, can be arrived at by a court’s balancing all the

concrete interests at stake.

Reasoning that engages in this sort of balancing is an established

feature of the European Court of Human Rights and is familiar to

common lawyers. It is likely that the case of the Rastafarian can-

nabis smoker will set a trend whereby courts will have to address

the meaning of human rights, even where their conclusion is,

mostly, likely to be that Parliament is the body best suited to bal-

ancing individual rights against the public good, and that, absent a

quite indefensible conclusion by a lower court, the court will be

reluctant to interfere.35

However, the English courts were confronted with rights-based

arguments before the Human Rights Act 1998, though they were

then dressed up in the guise of necessity defences. In those days

too, the courts were prepared to address the arguments of the

disobedient, though they were no more likely to accept them. For

example, in London Borough of Southwark v. Williams,36 the

English Court of Appeal had to consider the trespass of property

by some homeless people. The defendant argued that it was betterthat they sought shelter than that the property remain vacant. In

his judgment, the then Master of the Rolls, Lord Denning, con-

trasted their interests with those of the property owners. There was

a certain inevitability in his conclusion that it was for Parliamentto address the issue of housing and for Parliament to decide when

trespass could be justified, but the question was left open as to

whether the court would have intervened if, for health reasons, the

defendants had been in immediate need of shelter. Indeed, even if

a necessity defence is supposedly restricted to action taken to save

life in an emergency, there is scope for a common law court to be

imaginative. The concept of ‘saving life’ may be given a wider

35 James and Others v. UK (1986) 8 EHRR 123.36 London Borough of Southwark v. Williams (1971) 2 All E.R. 175.




compass than one might have expected.37 Thus, the mental anguish

of a rape victim was cited in order to justify an abortion at a time

when abortion could be performed legally only to save the life of

the mother, or to save her from serious bodily harm; the reasoning

used was that it can be difficult to separate mental suffering from

bodily harm and that one might lead to the other.38 Indeed, one

can find an imaginative application of the necessity defence outside

the common law courts too, and also in cases in which it would

have been more natural for the civil disobedient to have argued

her case through a plausible interpretation of human rights.39 But

this sort of reasoning is more typical of the common law.

If one can persuade a common law court that it is at liberty to

balance social or political interests, then it has proven quite ready to

do so.40 In America too, law can be attacked on constitutional

grounds and judges can be called upon to justify and/or explain it.

Much more emphasis is placed on the argumentation of the judicial

decision, in order to give greater legitimacy to the Supreme Court’s

decisions.41 As a result, many an American legal judgment develops a

socially responsive judgement, through an overt deliberation of the

decision, by integrating divergent and dissenting opinions as well as

extra-legal matters. In Roe v. Wade,42 for example, there was a

conscious balancing of interests. The Supreme Court found that the

Texan legislation prohibiting abortion, unless it were done on med-ical advice to save the mother’s life, violated the Due Process clause

37 Cf . the earlier discussion of ‘reasonable force’ in self-defence.38 R v Bourne, [1939] 1 KB 687.39 As in the Spanish case of a conscientious objector, who, having been exempted

from military service, refused also to perform any alternative social service. The

judge found that, given that the conscientious objector aimed at the abolition of

compulsory military service and was willing to accept any penalty imposed on him,

the moral conflict made his breach of the law necessary for him; and further, that the

harm done by his disobedience was proportionate to the need for him to preserve his

dignity (judgment of 6 March 1992). See this case detailed in J. Bengoextea and

J.I. Ugartemendia, op.cit., 444–45.40 M.-Th. Meulders-Klein, La personne, la famille et le droit. Trois de cennies de

mutations en Occident, (Paris: Librairie Ge ´ ne ´ rale de Droit et de Jurisprudence, 1999),

515.41 M. Lasser, ‘Anticipating Three Models of Judicial Control, Debate and

Legitimacy: The European Court of Justice, the Cour de cassation and the United

States Supreme Court’, Jean Monnet Working Paper 1/2003 at 25, available on

www.jeanmonnetprogram.org/.42 Roe v Wade, 410 US 113 (1973).

392 SOPHIE TURENNE



of the Fourteenth Amendment. To reach that conclusion, the Court

balanced the right to privacy, including a woman’s qualified right to

terminate her pregnancy, against the compelling state interest in

protecting both the pregnant woman’s health and the potentiality of

human life.

Furthermore, within an American or an English judgment, there

is always the possibility that more than one legal opinion will be

offered by different judges hearing the same case. Even where the

disobedient fails overall, one dissenting judgement in his favour may

constitute a significant victory. Managing to secure an open conflict

between judges towards the claim of civil disobedience is another

sign of success for the civil disobedient in these jurisdictions. Not

only has the disobedient’s interpretation of the human right in

question been partially vindicated, but the judicial dissent may be

viewed as an encouragement to seeking further law reform, and the

dissenting opinion may be cited to the next court which has to

consider the issue. Thus, some dynamic for change may come from

within the judicial system itself. An example of the precise role

played by dissenting opinions is the repeated dissents of Chief

Justice Scalia from the Supreme Court’s abortion decisions after

Roe v Wade.43

For an English example of the influence of dissenting judgments,

one might cite R v Brown44

in 1994. The House of Lords in this casedecided that the sadomasochistic practices of a group of homosexuals

were punishable as ordinary acts of violence, the apparent consent of

those belonging to the group having been deemed irrelevant. That is

the ratio of the judgment. But everyone knows that the decision was

split 3-2 and every reputable book on criminal law will discuss the

powerful dissenting opinion of Lord Mustill in this case. Two years

later, the Court of Appeal felt free effectively to disapply the decision

in R v Wilson,45 without explaining what differentiated the two cases.

43 See Webster v. Reproductive Health Services, 492 US 490 (1989); Bray v.

Alexandria Women’s Health Clinic, 506 US 263 (1993) (in which Chief Justice Scalia

delivers the opinion of the majority); National Organisation for Women Inc. v

Scheidler, 510 US 249 (1994); Madsen v. Women Health Center, Inc., et al., 512 US

753 (1994); Schenck v. Pro Choice Network of Western New York, 519 US 357 (1997);

Cloer v. Gynecology Clinic, Inc., 528 US 1099 (2000).44 R v Brown (1994) 1 AC 1.45 R v Wilson (1996) 3 WLR 125.




Naturally, criminal lawyers spend their time trying to find the rele-

vant distinction. But this case involved a human right – the right to

privacy – and the judges in the Court of Appeal felt free to listen to

fresh argument about whether criminalisation was appropriate. Per-

haps they did not feel completely bound by their Lordships in Brown

because of the dissenting opinions expressed in that case, and because

they did not regard the debate as having been fully closed by that

earlier case.

My point has been to emphasise that disagreements between

judges seem to go along exactly the same lines as disagreements

between citizens, so that the judicial arena seems also to be the

arena for a community to confront its political and moral princi-

ples. The cases cited in this section have, for the most part, not

been cases of civil disobedience as such – the defendants have not

acted in order to provoke a debate about the law – but the re-

sponses of the courts have been instructive. If they can weigh in

the balance of considerations the rights of the endangered homeless

and of the woman who wishes an abortion against the contrary

restraints of the positive law, then they are just as well suited, and

should be even more willing, to explain and justify the law when

the defendant has acted on the basis of a plausible interpretation

of a right and in order to seek a judicial response to her views . Yet,

even if a disagreement is aired and considered in the judicial arena,that does not necessarily resolve it, as the continual judicial

questioning of the Roe decision shows.46

FRENCH JUDICIAL ENGAGEMENT IN RESPONDING TO CIVIL

DISOBEDIENCE

The judicial expectations of ‘intra-legal’ civil disobedients are an-

chored in a common law tradition of judicial reasoning, which

contrasts sharply with French legal culture, as seen in the judicial

decisions of the French private law court, the Cour de cassation.The civil disobedient wishes, above all, to engage the judge in legal

46Planned Parenthood of South Eastern Pennsylvania, et al. v. Casey, 505 US 833

(1992).

394 SOPHIE TURENNE



discussion47 and to secure acknowledgement that his interpretation

of the right does have some merit, even if the judge rules that an

alternative interpretation must prevail.

Let us then first consider the difficulties involved in engaging the

judiciary in France. The judicial style of the Cour de cassation reflects

a single-mouth conception of the law, dealing with matters of law only

and thus excluding any consideration of facts as well as any extra-legal

element. For this reason, it does not seek to explain the law in response

to the civil disobedient. It will regard the law as having provided its

own conclusion without the need for further discussion. For example,

it is an offence in France to try to prevent a lawful abortion. On the

31st January 1996, the Cour de cassation convicted a group of anti-

abortion militants for trespassing upon the abortion centre of a hos-

pital.48 The militants claimed a necessity defence: they had acted in

order to save children – that is, children for them, but mere foetuses

for others – whose death had been, in their view, ‘unlawfully’ planned.

They claimed that the existing legal criterion of a ‘necessity’ to abort

should be scrutinised by the courts in each individual case and inter-

preted restrictively. In this case, the judge was asked to balance the

right of a foetus to life against the right to abort, but the Court

reaffirmed the prevailing legal understanding of abortion: it was not

for the court to assess the distress caused by pregnancy to the woman.

This decision, in true French tradition, was succinct. The Courtmade no allowance for the fact that the anti-abortionists had acted in

order to prompt the legal debate which the court had just concluded.

There was no discussion of the fact that the necessity defence was

understood by the civil disobedients as a form of moral coercion,

which required them to act on a specific interpretation of a right – the

right to life. The enshrinement of human rights in the Declaration of

the Rights of Man of 1789 is not accompanied in France by the

47 I do not necessarily mean a traditional ‘debate’ in which one would expect two

equal parties to try to persuade the other. The court, of course, has a higher status

than any defendant or advocate in so far as it is whatever the court decides whichshall determine the case; and the court is also less likely to have its own viewpoint in

the first place, let alone want to convince anyone of its rightfulness. But the court

must listen to the defence and attempt a reasoned refutation or dismissal of their

arguments in its final judgement.48 Crim 31 January 1996, Revue de sciences criminelles et de droit pe nal com-

pare 1996.670, obs. J.-P. Delmas Saint Hilaire. The wording developed here was

replicated in two judgments on similar facts: see Crim 27 November 1996 and Crim 2

September 1997, Dalloz 1998.I.106, at 141–42.




detailed style of judicial reasoning found in common law systems and

in both the US Supreme Court and the English House of Lords.

My complaint is not that the Court upheld a particular interpreta-

tion of the law on abortion, but that it provided no discussion of its

decision. For judges do make surprising judgements and, in France as

elsewhere, they do change the law. Reports and conclusions are pre-

sented by the Advocate General and by a judge of the Cour de cassation

at the deliberative stage, and these will include considerations of pol-

icy.49 But these are not openly acknowledged and the law is declared as

though it were obvious and in no need of detailed justification. So the

complaintof thecivildisobedientin Franceis not that thelaw cannot be

changed, but that she cannot openly cause it to be changed by engaging

thejudge in open argument. Nor canthe judge acknowledge theforce of

the argument by which he has been persuaded. This contrasts sharply

with judicial balancing that has been used in the case of the right to

housing but that balancing is to be found only in a few lower court

decisions and is not typical of the Cour de cassation’s reasoning.

The judges’ inability to do anything beyond barely declaring the

law means that the French judiciary cannot distinguish between

purely legal problems (for example, a case of privity of contract)

and cases which require a balancing of competing rights, such as the

right of a foetus to life and the right of a woman to self-determi-

nation. This inability is sometimes justified by reference to thestatutory mission of the Cour de cassation, which is to ensure

uniform interpretation of principles by the lower courts. This is

achieved through an abstract formulation of those principles and by

strictly avoiding discussion of the facts, which are debated only by

the lower courts.50 The Cour de cassation declares the law and does

49 M. Lasser, ‘La MacDonald-isation du discours judiciaire francais’, Archives de

philosophie du droit 45 (2001), 137–48.50 See the following lower courts’ judgments in which some anti-abortion mili-

tants were acquitted of the offence of trying to prevent a lawful abortion. In the first,

the Court of Appeal of Chambe ´ ry (20 November 1996, (1997) Droit Pe nal 157observations. J.-H. Robert) did so on the ground that the anti-abortion militants

successfully demonstrated that some of the legal criteria allowing abortion had not

been satisfied by the clinic; while the Court of Appeal of Lyon (judgment of 13 mars

1997, see Juris-classeur Pe riodique 1997 II. 22955, note G. Faure) did so on the

ground that abortion was a homicide. The decision by the Court of Appeal of

Chambe ´ ry was tersely quashed by the Cour de cassation (Crim 2 September 1997, see

Juris-classeur Pe riodique 1998.I.105 at 141–42) using the exact wording of the ratio

decidendi applied in the decision of 31 January 1996 (see supra).

396 SOPHIE TURENNE



not reconsider its application to the facts of a particular case (unless

it is an exceptional case of gross misapplication of the law). Ref-

erence to the court’s mission does not, however, answer the com-

plaint at issue here, which is twofold. First, the renowned

parsimony of the Highest Court’s judgements means that the dis-

obedient’s alternative interpretation of the law will not be consid-

ered on terms equal with the established interpretation; and there

will be no detailed reasoning pro and contra the position presented

by the defendant. Even if the disobedient’s claim is ultimately re-

jected by the Cour de cassation, uniformity of legal interpretation

would be better secured by the Highest Court’s providing a more

detailed consideration of the opposing interpretations of the law.

Second, the artificial separation of law and facts between the

Highest Court and the lower courts merely explains the tersely

abstract legal reasoning developed by the Cour de cassation and

further emphasises the lack of open balancing between conflicting

rights by the French Highest Court. Legal principles and facts are

indisputably intertwined when defining the scope of a legal princi-

ple51 and excluding facts from the reasoning of the Cour de cas-

sation leads inevitably to the a posteriori construction of syllogisms

which are not adequate substitutes for the detailed reasoning of the

Court. The challenges of human rights’ interpretation show the need

for the highest courts in England, America and France to respondproperly to the challenges of mixing issues of law and fact. Only

then can the inclusiveness of human rights and constitutional

rights52 yield a broad interpretive context in which civil disobedients

can locate their arguments about how the law should be under-

stood.

A further feature of the Cour de cassation is that all of its

judgments are said to be those of the entire court. Thus, no pro-

vision is made for dissenting opinions, on the ground that the terse

unity of judgments ensures the primacy of legislation against the

risk of too diverse judicial interpretations of the law. Judges do not

51 See P. Ricoeur, Le Juste (Paris: Esprit, 1995), 179.52 Severe nuisance to the environment caused by polluted waters was thus held by

the European Court of Human Rights to violate the right to private life under Article

8 of the ECHR, see ECHR Lopez-Ostra v Spain (1994) 20 EHRR 277. This reasoning

deriving a right to a healthy environment from the right to private life was confirmed

in ECHR Gerra and Others v Italy (19 February 1998); see also ECHR McGinley and

Egan v UK (1998) 27 EHRR 1.




have the right, through dissenting opinion, to argue that the law is

not what the majority of their fellow-judges say that it is. The

constant search for unity of legal interpretation also ensures that a

social controversy will not be reproduced through dissenting opin-

ions at judicial level, although this apparent unity of law does not

guarantee that French judges are better able to come to terms with

principled disagreements than their American or English counter-

parts. Indeed, from the point of view of the civil disobedient, the

single-mouth conception of the law means that there is one less

possible path to reform. Incremental persuasion, through dissenting

opinions, is not a viable strategy.

CONCLUSION

I have emphasised the great importance of differing, but plausible,

interpretations of human rights for civil disobedients who seek to

challenge existing interpretations of the law by securing legal adjudi-

cation of their alternative interpretations. The possibility of ‘intra-legal’

civil disobedience relies upon the inclusiveness of human rights and

constitutional rights, the interpretation and application of which

should be determined not only through an insightful balancing of the

interests embodied in conflicting rights, but also by attending closely tothe circumstances of each case. This inherent flexibility of human rights

as a legal instrument grounds the view that human rights must be

argued for and should not be merely declared as though their precise

content were an objectively given legal truth.

The appeal to the rule of law by civil disobedients is thus well

channelled through rights insofar as the mere plausibility of a case for

legal change should require consideration by judges, even though their

responses may be predictable. The presentation of a plausible inter-

pretation of a human or constitutional right that departs from the

established interpretation renews the need for justification of the

established interpretation. But this close link between rights and dis-

obedience ‘within the law’ depends crucially on the willingness and

ability of judges to justify their interpretation of the law.

A comparative perspective on judicial engagement in response to

civil disobedience is then of especial interest and significance. Given

that human rights require evaluation and balancing if they are to have

meaning at all as concrete rights, it is noteworthy that the proposition

that a judge should have openly to balance competing interests in her

398 SOPHIE TURENNE



judgment is not regarded in all jurisdictions as self-evident. The wider

role of the judiciary matters too and that may vary according to the

legal culture of different jurisdictions. ‘Intra-legal’ civil disobedients

can entertain the hope of having their views echoed by the highest

courts of Common law systems, only if those systems allow transpar-

ency of legal reasoning through dissenting opinions and a detailed

weighing of facts in relation to principles. Those who regard such

judicial engagement positively (as does this author) have reason to

criticise the traditionally syllogistic and non-factual approach that has

been developed by the French Cour de cassation.

But Anglo-American disobedients can learn from a comparative

perspective too, if only to appreciate what they already enjoy. Much

progress can be made through open engagement with the judiciary in

arguing about the meanings of rights, even if one is initially unsuc-

cessful. In England and America, lawyers talk about judges changing

the law but typically underestimate the importance of their ready

ability to require judges to justify their decisions in a detailed manner.

Even when the civil disobedient is ‘defeated’ (i.e. convicted in spite of

his legal arguments) he has made some progress if he has obliged the

court to provide a detailed statement of its reasons and an explicit

balancing of the competing interests at stake in the interpretation of

the human right at issue. To French eyes, common law jurisdictions

have already progressed a long way in allowing continuing debateabout the correct interpretation of constitutional and human rights.

Faculty of Law

University of Cambridge

10 West Road

Cambridge CB3 9DZ

UK

E-mail: [email protected]


Date post:	03-Jun-2018
Category:	Documents
Upload:	mnbvcxqwer
View:	218 times
Download:	0 times

Turenne. Judicial responses to civil disobedience. A comparative approach.pdf

Documents