obedience to the law, civil disobedience and conscientious objection OBEDIENCE TO LAW, CIVIL Disobedience
And Conscientious objection
Second Edition
BY HERNAN A. RIVAS ORTIZ
PRESENTATION
This test contains twenty-five very brief (*), all of the totally informative about some problems related legal philosopher obedience and disobedience to positive law, problems that show the border clashes between! to ethics, politics and e! RIGHT, which start in Modernity and the Renaissance, the Reformation, the discovery of America, the Enlightenment, the bourgeois revolutions, that is, in terms of Kant, with the arrival of man to the age of majority or, in words WEBER, with the period of disenchantment of the world.
Indeed, these reflections inside information to take to obedience to the law, civil disobedience Conscientious objection is put in mind the strong relations and the struggles tenacious between ethics, politics and law, chaff in a positive or negative. In the first, moral reasons, political and legal, although not the only play an important role in determining the basis of obedience to law. Conversely, in the second, those same reasons are often critical to sustaining the disobedience to the law. It is, therefore, to deal with burning questions of practical philosophy that has taken so much momentum at this crucial turn of the century, full of surprising facts in all fields of life, offering great potential for illuminating a better world more justice and solidarity, guided by technology, science, socialism, democracy and the effectiveness of collective and individual human rights.
In the first meditation say that the question WHY MUST OBEY THE LAW? is the root of every curve along legal philosopher of history. Indeed, in this question are summarized centuries of theories and historical experiences about! To "'unsocial sociability''that human life is for Kant, about the legitimacy of the juridical and political, about the ongoing tension between individuality and collectivity A. HELLER spoken of O, as now is said about the problem of consensus and dissent. But that question does not exhaust the problem of legality because it must be supplemented by others of this kind. When should obey the law? , or when not to obey? There are many historical events that have shaped the awareness of social and individual need to disobey the law. We have chosen two forms of disobedience to the right of paramount importance, civil disobedience and conscientious objection, this time without touching other forms of dissent and revolution, political criminality, e! right of resistance, anarchism, strikes or non-cooperation movement.
Even when interpreting the legal duty as something specific and different from the moral duty or political obligation, the question of the basis of legal duty involves many considerations of a moral and political, as seen in the reflections dedicated to obedience to the law.
On! A justification of duty of obedience to law exists many conflicting positions for everyone materialistic or idealistic, theological or rationalistic, both in antiquity and today. Some authors, from Thrasymachus to Kelsen, through the Scholastics, Thomasius, MARX O IHERINO, for whom the foundation of obedience to the law lies in the human or divine force, the existence of social or theological coercion. Faced with this type of positions it is argued that force can not lead to a duty, a legal validity, because according to Welzel "coercing coercion but not required." In explaining opposition to obedience to the law of coercion, calls for recognition theories argue that such obedience to the law rests on the acceptance of the addressees, ie on the conviction of those about mandatory legal norms because they enable the legal and socio-political. This is the reason fabulous social contract by which a general will of the alleged human imposes civil society, law and the state. Metaphorical contract that seeks to articulate the wishes and join interests, but as you said Marx, "is only the appearance, cosmetic appearance of large and small Robinson" anticipating the "bourgeois society."
The foundation of the obligation to obey the law leads us to the problem of the legitimacy of the juridical-political issue that can not even set forth in this presentation. The problem of this legitimacy is complex and refers to popular sovereignty, the basis of modern democracy, which in practice translates into the view of the majority, not forgetting the individual. And back to the problem of rule of law, that is, the issue of conformity between the rules of law in certain specific requirements human rights-based in freedom, equality, dignity, security, solidarity, peace and justice.
Since the publication in Spain in 1979 of an essay by GONZÁLEZ VICEN on obedience to law has provoked a lively and important debate around its content that has involved some members of the Institute of Philosophy of Law, Moral and U.S. politics, which hardly going to mention because of their importance, GONZÁLEZ VICEN part in the argument of the critique of legal positivism, which holds that all rights and coated occurred correctly validate?, formal obligation regardless of its content. The legal vinculatoriedad compulsory means right here just because of their formal validity. After criticizing the main thesis on the subject, the English philosopher considered to limit the obligation lies in the individual conscience. To GONZÁLEZ VICEN JOS imperatives that have a vinculatoríedad absolute consciousness, and when it contradicts a rule of law must be disobeyed. As a result of all this the philosopher reaches the following conclusion: "While there is no ethical basis for OBEDIENCE TO LAW, THERE IS AN ETHICAL BASIS FOR Disobedience." GONZÁLEZ VICEN radically dismisses the ethical reasons as a basis for obedience to the law because they "are not in the social orders, but only in the autonomy of moral individuality, ie, in the imperatives of conscience. "
Law as" heteronomous and coercive order "which serves the interests of class domination and social groups can not be based on grounds relating to individual ethical conscience.'s thesis VICEÍN GONZÁLEZ has been repeatedly criticized by their English colleagues as ATIENZA, CORTINA, DIAZ, FERNANDEZ, Giza Gazcón, and backup in case MUGUERZA, but now we will review them one by one. The common objection refers to the social dimension of morality and its relationship to the right, based on the distinctions between legal and ethical obligations. The conceptual distinction between ethics and law should not be confused with the contingent possibility of consciousness. GONZÁLEZ ethical individualism VICEN serves not only to support the dissent, but also to make life possible, not only to disagree but to cooperate, to obey and disobey the law always contains a minimum moral standards in their system. Both
OBEDIENCE
as disobedience to legal norms can not but be based on moral reasons and justifications. FERNÁNDEZ critical look at some of the arguments in the controversy in his book devoted precisely to Obedience the right. His thesis argues that there pnncipal obligation to obey the law provided that has occurred under a particular decision-making process and have some content, more precisely, the right Fiene legitimate authority, that is, must be obeyed when it has the moral authority that gives the right to be fair, such as acquiring two requirements are met combined, have been produced democratically legifimidad the principle of contractual and respect and ensure the rule of fundamental rights.
As we discuss in our modest reflections, the obedience to the law must be focused by integrating at least three justifications: legal, morality and politics, without forgetting the context of the social relations of production and productive forces prevailing in the society where it operates, as well as class struggles and problems between individuals and those of staff awareness every nuance. The problem of obeying the law must take into account the individual and the power, consciousness and society, classes and groups within the complex relationship between ethics, politics and law. Therefore, not only can we speak of compliance with the law from a moral standpoint, regardless of their legal and political problems. Again, the subject matter of the law needs budgets legal, moral and political grounded in a social and democratic state of law that recognizes and guarantees human rights.
However, as we said before, moral reasons, political or legal in the negative sense can also be critical to justify disobedience to the law. Historical events such as American racism, imperialist wars, the monstrous Nazi fascism, the Stalinist tolalitarísmo right-wing dictatorships in the world, national armed conflicts, ethnic strife, religious or regional legal immorality, the standards inconstitucionaüdad laws, the violation of rights humans, attacks on individual consciousness, the deterioration of ecological environment, authoritarian socialism, in short, all forms of social injustice or personal disobedience to enable RIGHT imperiously.
can say that all these events happen far more serious and even the systems governed by the social and democratic state of law because, as noted child, even when there is a presumption in favor of supporting the democratic decisions about who been approved by a majority after a wide and free discussion, it is a revocable presumption in light of the conclusions that can be reached within the framework of moral discourse. Neither democracies capitalist and socialist democracies are free to commit all manner of outrages against the rights of the collectivity or individuality ta. Indispensable, as they frequently recall, true democracy is characterized by its ability to tolerate dissent very widely without being destroyed by it. Everything! Or not, today the social and democratic state of law to test their strength when and warrant forms of disobedience to law as civil disobedience or conscientious objection to other reflections which are dedicated summary and teaching.
From the classic attitude of Antigone, Sophocles becomes a universal paradigm, to position Thoreau against the nascent U.S. imperialism, that of Gandhi against British colonialism or the MARTIN LUTHER KING against American racism, famous characters who have chosen to illustrate the civil disobedience, through all the martyrs of religious freedom and all social activists, since the dawn of modernity to this day, with the terrible experiences of totalitarianism of left or right, the questions that resonate in all times are those made before: WHEN SHOULD OBEY THE LAW? Or when not bound to obey? The case of Socrates, that we also chosen as a model immortal beginning of the work is to maintain an admirable radical that compliance with the law must be absolute, that the interests of the individual conscience can never interfere even at the expense of their own lives, as evidenced by this philosopher. In contrast, in the glorious GANDHJ cases and civil disobedience KING prevails before the law unjust, immoral or illegal, and may also need to sacrifice human existence, as evidenced by their murders. The same is true of Thoreau, whose conscience of civil disobedience prevails over the interests of an imperialist war.
Civil Disobedience and Conscientious objection are forms of disobedience to the law, characteristics of modern and contemporary age. It is often said that the first is the gender and la segunda la especie dentro de él. De hecho, hay quienes consideran la objeción de conciencia como una modalidad de la desobediencia civil. Sin embargo, existen varios elementos que permiten diferenciarlas, aunque sus similitudes son muy notorias. Comencemos por las ultimas. Cabe señalar, como notas comunes a una y otra, que en ambos casos se transgreden una o varias normas legales, pero sin desconocer el orden jurídico superior, esto es, la Carta Política a la cual precisamente se pretende fortalecer con la conducta, desobediente u objetora, de modo que el rechazo al derecho estatal se dirige solo, por una razón particular, repetimos, contra un grupo preciso de normas; por lo demás, las dos constituyen formas de acción non-violent.
As we will see in our reflections, civil disobedience is strictly non-compliance with certain legal regulations in order to achieve the amendment or repeal, because it is considered unjust, immoral or illegal. Conscientious objection is not intended to change the legal norms, but their lack of self based on individual reasons nuanced. In this disobedience to law, personal conscience refuses to comply with the provisions in a particular legal standard because it affects their inner values, but does not attempt its repeal or modification in general.
civil disobedience is always public by its very nature includes, for Typically, a large group of people in their offensive against injustice, immorality or illegality of certain legal standards, whereas conscientious objection boils down to individual behavior, almost secret, to breach a legal duty particular life disturbed. Furthermore, civil disobedience and illegal recognition of their actions and accept the appropriate punishment, while conscientious objectors act supported by positive law and, consequently, their conduct is not punishable. Finally, it should be noted that the reasons given by civil disobedience are more comprehensive and collective nature, while those of conscientious objectors are based the individual and their personal values.
To conclude this presentation, we say that our thoughts have been nurtured in many specialist and general bibliographic sources without originally intended, because they have, again, a strictly informative certain problems! To obedience and disobedience to the right , to the best of our knowledge, not been tried in Colombia, a country much in need of disobedience to the law in all its manifestations. While achieving the most important, the revolution, I hope that these basic ideas to reach all Colombian workers and that, somehow, can serve as a stimulus for battle to come for civil disobedience that have never practiced in our country from the injustice, immorality and illegality of many legal rules secondary legal order in force in the country. We also hope to contribute to this single work to which public awareness to develop legally the new Constitution, which states in Article 18 embodies the conscientious objection. In this regard, all I know on the subject is a draft law on conscientious objection to military service
, drafted by Senator Manuel Cepeda Vargas, recently murdered by their ideas and their struggles.
This test was taking it a famous phrase by Misha: "If you steal from one author, it is called plagiarism, if you steal from many, researcher." Our case is located in the second situation, we stole some time for our daily work activity of attorney to compose the reflections that follow, inspired by many thinkers. A number of brief reflections have been published in the New Age Magazine, School of Law and Political Sciences, Free University.
HERNÁN A. RIVAS ORTIZ
___________________ (*) \u200b\u200bSee the preface to! A second edition.
