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Arthur Li questioned the motives behind the Occupy Central plan.
Opinion
Jake's View
by Jake Van Der Kamp
Jake's View
by Jake Van Der Kamp

Rule of law and obeying the law are two different things

What we have in mind with rule of law is more the duty of the public custodians of the law, our lawmakers, police, prosecutors and judges, to act through due process of law however offensive they think the crimes committed against it.

I'm not sure I entirely agree with you here, Arthur. The duty of the citizen to obey the law is not quite the same thing as observing the rule of law.

What we have in mind with rule of law is more the duty of the public custodians of the law, our lawmakers, police, prosecutors and judges, to act through due process of law however offensive they think the crimes committed against it, however much they might like to send certain offenders straight to jail.

Rule of law is also about the public custodians of the law observing constitutional limits on their own authority and on the authority of government. It is what prevents them from enacting laws that violate constitutional rights or enforcing laws in ways that the constitution or the common law does not permit.

But it does not say much about citizens obeying the law. It only says that when they are charged with breaking the law they will be dealt with as the law provides and not arbitrarily.

The two matters are best not confused as some tricky tangles threaten here, for instance one of the 20th century's most celebrated cases of a breach of the law.

In 1930, the Indian lawyer and independence activist, Mahatma Gandhi, organised a march to the sea with the purpose of taking a piece of salt from the beach there and tasting it without paying the tax that the British colonial government of India had imposed on salt consumption.

Put all this in the context of British India. Here was a country subjugated for gain by private military adventurers through possession of more deadly weaponry, and made a full colony of a country 7,000 kilometres away after unfortunately losing its war of independence in 1857.

It was then subjected to continuous economic calamity in order to serve the antiquated mercantilist notions of its foreign masters and to pay the enormous cost of the army that kept it in subjugation. With the salt tax the colonisers built a fence across the entire country to stop trade in untaxed salt.

But with that one demonstration of publicly licking a piece of salt on a beach, Gandhi exposed the whole rotten system to the world, re-energised his people to the achievement of independence 17 years later, and was sent to jail.

Did he disobey the law? He most certainly did, deliberately and with no remorse.

But is there anyone in the world today who would say that he should not have done it, that he should have put that piece of salt back on the beach and told his followers to go home and obey the authorities?

It's a cop-out to say that these colonial authorities were not properly constituted. You only invite Occupy Central to ask when China's government ever subjected itself to a general election. If government does not rule with the consent of the governed, by what authority does it rule at all?

And here is where all the precise logical splicing and dicing so favoured by law professors breaks down. There is no overriding law that sets out universally applicable principles for what is properly constituted law. This is where the law itself becomes paradoxical and where we applaud the Gandhis of this world.

If it were not so, Arthur, then there would still be an emperor and his harem in Beijing's Forbidden City today and you might be wearing your hair in a pigtail.

Best not analyse this conundrum at the heart of the law too closely. It helps neither the rule of law nor respect for the law.

But, yes, telling students to skip class in order to protest against nomination procedures for the chief executive strikes me as well as juvenile behaviour for a law professor.

If this government offends you so much, kids, would you mind returning the contaminated money it paid for your education? What about you, professor?

This article appeared in the South China Morning Post print edition as: Rule of law and obeying the law are two different things
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