Moral questions surrounding Occupy Central's civil disobedience campaign
Shannon Gong and Olivia Gong ask whether an illegal act of civil disobedience as planned by the Occupy Central campaign can be justified, however noble its aims may seem to organisers
Lately, people toting vibrant banners bearing catchy slogans that either endorse or condemn the "Occupy Central" movement swarmed the streets of Hong Kong. They reflect a city deeply divided over electoral reform, ever since Professor Benny Tai Yiu-ting first proposed the campaign in a newspaper article in January this year. The proposal claims to be an act of civil disobedience with the ultimate goal of achieving "real" universal suffrage for the election of the Chief Executive in 2017 and of the Legislative Council in 2020.
Civil disobedience is the refusal to comply with certain laws as a peaceful form of political protest. The idea is to amass public sympathy to force the government to satisfy the dissenters' demands for "justice" - in this case "real" universal suffrage. Even a child knows breaking the law is wrong. So how, if ever, can breaking the law be justified?
University of Michigan philosophy professor Carl Cohen, author of Civil Disobedience: Conscience, Tactics and the Law, suggests that we examine civil disobedience from two perspectives - legal and moral.
Take an example from Victor Hugo's classic novel Les Misérables. The character, Jean Valjean, stole a loaf of bread to save his dying nephew and was then held captive in jail for 19 years. In law, he committed the crime of theft. Common sense and logic tell us that, under the law, what he did was wrong. Yet our moral conscience suggests that his attempt to save his nephew was right. Natural human instincts dictate that in some very special circumstances, it might be "OK" to break the law.
It is impossible to make a legal justification for doing something illegal, so the only ground left to justify an illegal act is from a moral perspective. We can conveniently classify moral justifications into two branches - "higher law" and "utilitarian" justifications.
Higher law is the concept that some unwritten universal values exist above the law. These principles are in some way tied to moral conscience and are so significant that they outmatch any conflicting legal obligations.
For instance, Martin Luther King Jnr was well-known for repeatedly using the "higher-law" defence to justify his civil disobedience movement in the 1960s. In disobeying segregation laws that championed discrimination, he argued, "one has a moral responsibility to disobey unjust laws". The difference between a just and an unjust law is that an unjust law is out of harmony with the "moral" law. If certain universal moral standards are not met, one should be obliged to disobey that law.
In essence, organisers of Occupy Central bear the heavy burden to fully argue that some truly fundamental universal principles are so significant such that they morally propel the illegal occupying of a certain area in the Central district.
The second possible means to justify civil disobedience through moral argument is the concept of utilitarianism. Here, the standards of right and wrong are to be measured by whether the act in question would achieve "the greatest happiness for the greatest number of people possible".
In other words, the dissenter has to demonstrate that his disobedience of a particular law, taking into account the normal punishment that would ensue, is likely to lead in the long run to a better or more just society than if he didn't disobey the law.
To form his argument, he must weigh all aspects of the consequences of the illegal act. To successfully argue his case in front of the public, the analysis must be thorough in its depth, accuracy and sophistication.
For example, Professor Tai must evaluate practical aspects such as the degree of injustice that anything other than "real" universal suffrage would bring to the community, the extent that previous means to seek termination of this injustice through ordinary channels have proved disastrous, the expense that would be incurred by the community as a consequence of the disobedience, and the likelihood of injury done to persons or property as an indirect result of the disobedient act.
Most importantly, he must contemplate meticulously the likely outcome of the disobedience and especially whether the public can actually exert pressure on the "real" game changers, arguably the Beijing authorities.
The reality is that civil disobedience is rarely justified. It is a highly complicated and weighty task for Professor Tai and his co-organisers to take on.
Of course, ultimately every individual will have to decide for himself or herself if Occupy Central can be justified.
But perhaps too much emphasis has been focused on the final stage of actually occupying the streets of Central. More attention should be placed on the core of the entire campaign - that is, engagement. In this respect, let's not deny that the controversies of the Occupy Central proposal have already generated healthy, though occasionally intense, discussions over the conceptions of justice, democracy, the rule of law and other fundamental values throughout all sectors of the society.
Whatever the outcome, one thing is certain: continual dialogues are healthy signs of a city that consistently strives for improvement for the well-being of its citizens and a more just society.
Shannon Gong is a legal research assistant at the Chinese University of Hong Kong with experience in the Legislative Council. Olivia Gong is a research project manager at McGill University