Tyranny of the majority: Is secession a justified response?

From Colorado counties proposing secession to Crimea voting to break-away from Ukraine; and from Venice adopting unofficial independence status to Scotland wanting to dissolve the 307 year-old marriage with England – Who’d have thought we are living in an age of social contract renewal?

Over the past four months – majorities in 5 out of 11 counties voted to become the 51st US State; an

unbelievable 96% of Crimeans voted to join Russia; 89% of Venetians voted to create independent city-state within Italy; and in September Scottish voters will take to the polls to decide whether to become a free and independent country.

Opponents of these secessionist movements have quickly taken to the bully pulpit to point out the unconstitutionality of these votes. What if it’s illegal to vote for smaller regions, such as a county, to secede from lager entities, such as states or nations? Does a law make separatists feelings “go-away”?

Secessionist ideas do not begin at the ballot box or in a parliamentary chamber. The ideas of dissolving the bands that tie one region to another begin with disaccord and minority dissatisfaction – tyranny of the majority. Where one political party dominates and punishes the opposition or one geo-cultural group forces its views onto another.

Under the US Constitution, no mention is made of an acceptable dissolution of the union. The Civil War and the Supreme Court’s decision in Texas v. White (1869) arguably established the Constitution ordained a perpetual and indissoluble union.

In 1776, when the founders declared independence from the United Kingdom, that act was in violation of the British Constitution’s supremacy of parliament. If there had been any doubt of Parliament’s authority, The Declaratory Act of 1766, which asserted the right of Parliament to legislate for the colonies "in all cases whatsoever," would have settled the question.

To consider our founders revolutionaries seems abhorrent. The situation was an impasse, Parliament told the colonists to ‘go pound sand’ and the colonists responded by crafting a legal justification based on social contract theory, tyranny of the majority, and natural law.

Colorado counties which proposed secession; orange is where measure passed. 

As for the Colorado counties wanting to follow the West Virginia Model, that dream ended when the 69^th Colorado General Assembly adjourned on May 7^th.

Under Article 4 §3 of the US Constitution, no new state can be created from within an existing state without the consent of both the state’s general assembly and Congress.

Without the Colorado legislature taking action, our state will remain intact. Remaining united is not to say the dissatisfaction with the Democrats who control the governor’s office and legislature has gone away.

Similar to Colorado, the Crimea and Venice referendums were a protest to majority tyrannizing the minority. Unlike Colorado, Crimea’s vote was unconstitutional. Venice’s ballot was unofficial.

The Ukrainian Constitution specifically states in Article 73: “Alterations to the territory of Ukraine shall be resolved exclusively by the All-Ukrainian referendum.”

Many have argued the Crimea referendum was illegal according to Public International Law.

Firstly, under the Montevideo Convention on the Rights and Duties of States (1933), four requires must be satisfied to be considered an independent nation: permanent population, a defined territory, a government, and the capacity to enter into diplomatic relations.

Secondly, a country must be recognised by another country.

Crimea, a peninsula region in the Black Sea. 

The Crimean referendum asked voters whether they wanted to join Russia as a federal subject or restore the 1992 Crimean Constitution which granted greater authority to the regional parliament. With 83% voter turn-out, 96% voted in-favor of joining Russia. This act was certainly illegal under the Ukrainian Constitution, but as for International law, the jury is still out.

The Venice ballot asked voter whether they wanted to secede from Italy and become and independent city-state. With 65% of the region voting, a whopping 89% or 2.1 million people voted in-favor of breaking away from Rome! The Italian Government had no fear of Venice actually breaking away, as the referendum had been unofficial.

Much like rural Colorado having difficult with Denver listening; Crimea has a Kiev problem; Venice a Rome problem; and Scotland, an English problem.

On September 18^th, Scots will take to the polls to decide their fate. Legally, Scotland has the same problem the American Colonists had with the British Constitution, namely the supremacy of parliament.

The UK Parliament in London has the ability to enact or resend any legislation, including the grant of independence. The Edinburgh Agreement, merely a gentleman’s handshake, is where the UK Parliament has pre-agreed to acquiesce to the outcome of the referendum.

While the votes remain to be cast, one thing is certain, laws banning secession don’t make secessionist ideas go away. Revolution and civil war should be avoided. Elections, whether official or unofficial; lawful or unlawful should be a wake-up call to majority-leaders who are unwilling to respect the ideologies, customs, or traditions of minority constituencies.

Gaddafi killed: reign began with coup, ended in revolution

Col Gaddafi in early 2011 denouncing threat of revolution

No leader should reign over a sovereign state with utter disregard for the welfare and prosperity of the citizenry. This week marks the end of Col Muammar Gaddafi, who had been Libya’s tyrannical ruler for 42 years. It seems rather ironic that Gaddafi - who, at age 27, led a bloodless coup d’etat in 1969 against the Libyan monarchy – was disposed of himself in a revolution, which in many ways reflected the American struggle for independence. The assassination of Gaddafi marks the symbolic end to tyranny in Libya.[1] I wish Libyans Godspeed, as they secure the blessings of liberty and strive to establish a new republic in northern Africa.

Under the basic principles of Natural law, a government only exists as the result of the consent of the people. When a government no longer has regards for the general welfare, security or prosperity of the people; then there comes a point when the allegiance of the governed is no longer obligatory in the face of tyranny. The American Declaration of Independence promulgated this legal reasoning and made a call to action – “...it is [the people’s] duty to throw off such Government, and to provide new Guards for their future security.” Such basic fundamental rights of equality and self-determination are now enshrined in the UN Charter.

Gaddafi, struggling, after NATO

planes hit his convoy

Just as French air force jets fired warning shots in front of the convoy attempting to evacuate Col Gaddafi from Sirte, the revolution and death of a ruthless dictator should be a message to governments around the globe that it’s the people who consent to be governed. When those leaders fail to heed the warnings, ignoring free and fair elections and abusing power, reducing it to absolute despotism, then those grievances, under Natural law, are sufficient for dissolving the bands which tie the people to the government.

______________________________________________________

[1] M Soper, 'The Death of Libyan Leader Moammar Khadafy' (Denver Post: 22 October 2011); http://blogs.denverpost.com/eletters/2011/10/21/the-death-of-libyan-leader-moammar-khadafy-2-letters/15186/; accessed 22 Oct 2011 

Is it more important to ask whether one should obey an unjust law than whether it is a law?

Theories of law which place just and unjust law at its centre tend to be in the arena known as ‘natural law’ and are promulgated by such early scholars as St Thomas Aquinas, Thomas Hobbs and John Locke, along with Jean-Jacques Rousseau, Edmund Burke and Thomas Paine. They took the view that there is a natural order to life, whether divine or innate, and as such we should structure our society accordingly. Reason was deemed to be one of the natural elements which distinctively make us human. The modern reincarnation of natural law theory is exhibited in John Rawls. The basic premise of the theory is how we might consent to be part of a political society. The reasoned answer was that there needed to be a bound by a social contract. This contract would serve to move the natural world into a civilized world, whereby some rights are delegated to the state and others are reserved to the people. The goal of this transformation was to overcome the state of nature, which was viewed by Hobbs as being “The war of all against all” and a life that is “solitary, poor, nasty, brutish and short.” Locke and Rousseau tended to have a more optimistic view of the natural state by seeking to preserve and protect what is significantly good. Today natural law is viewed from three major perspectives: (i) the John Finnis approach which says that certain features of our natural world should be reflected in the substantive law, (ii) the Lon Fuller approach which incorporates nature into the form and procedure of law and (iii) Ronald Dworkin who places natural theory into the interpretation of Law.

An unjust law, meaning a law which is contrary to the natural order, should not be regarded as a valid law. To quote Lon Fuller, “Law is the enterprise of subjecting human conduct to the governance of rule.” Somehow we have to ordinate our conduct to these rules, as our everyday human behaviour is subjected to the governance of rules. For Fuller, to escape the shadow of totalitarianism, then law has to achieve an “inner morality”. This still does not answer the question as to whether one should obey an unjust law. Fuller takes the grudge informer cases from Nazi Germany and reasons that while they may have been unjust, that is not the question one should be asking, instead, Fuller looks to see if it is valid law in the first place. In order to see if a law is law, Fuller designed an eight-standard-approach which involves seeing if the law is general, promulgated, non-retroactive, clear, non-contradictory, followable, consistent, and applies equally to all stratus of society, including government officials. A law does not need to comply with all eight elements to be law, but it should generally be regarded as having achieved the flavour and substance of the “Desiderata” or eight-standard-approach.

This reasoning makes sense, as a society cannot be allowed to follow some law and ignore others on a whim, though an entire law or legal structure is also capable of not being regarded as law, in which case the law is void, as it never was valid to begin with. None the less, a weakness of this reasoning is that minority right could potentially be trampled by the majority in society, especially in less sophisticated democratic societies.

The ‘Case of the Speluncean Explorers’

The ‘Case of the Speluncean Explorers’ [See: (1949) 62 Harv. L. Rev. 616], is a hypothetical case, written by Harvard law professor, Lon Fuller (1902-1978). The case contains five judgements, each employing a different method of legal reasoning – formalist, positivist, indeterminate, realist and idealist – in rationalizing and justifying their decision. The challenge for the court is one of life and death, as the case involves explorers trapped in a cave, a massive rescue attempt (which results in ten rescuers perishing), and four of the trapped men killing and eating the fifth in order to survive. The criminal code of the society reads, “Whoever shall wilfully take the life of another shall be punished by death”. The justices debated negating factors like: self-defence, quasi-contract theory, necessity and popular opinion, along with the purpose of the criminal law and notions of morality. Prima facia, this case appears void of a ratio decidendi as two of the justices were in the affirmative, one abstained, and the last two opted to over-turn the sentence rendered in the lower court.

Factually, the Speluncean Case is similar to the Chilean miners who have been trapped for nearly two and a half months. Legally, the Speluncean Explorers case is akin to the American cases of U.S. v Holmes (1842), the case of Donner Party and Packer v The People of the State of Colorado (1885), along with the English case of R v Dudley and Stephens (1884). All three reported cases considered the question of necessity. Hume, i, 54-55, defined necessity as “that which arises from the pressure of extreme want: I mean where the person has done something which serves to the support of nature for the time. As might be expected, lawyers have differed about the justice of punishing such a case: some affirming that the notion of dole is excluded in these circumstance of personal distress, or at least that they afford a good plea for a mitigation of the ordinary pains; while others deny that such considerations are at all available in law.” Professor Lon Fuller choice a very clever topic for his case, as it concerned topics which ‘shock the conscience’ – to quote one well known juris.

United States v Holmes (1842) 1 Wallace Junior 1; 26 Fed. Cas. 360 The U.S.S. William Brown hit an iceberg in the frigid waters of the north Atlantic. Survivors, including crewmember Alexander William Holmes, who believed the lifeboat was overloaded and destine to sink in the choppy waters, proposed the idea that a few of the survivors sacrifice their lives in order for a few to live, rather than all onboard perish. Lots were drawn and 14 passengers were tossed into the frigid ocean waters, resulting ultimately in their deaths. In Philadelphia, Holmes was charged with murder, though a grand jury reduced the charges to manslaughter. Holmes pled the defence of necessity, but was convicted on all counts.

A US Military investigation into the Donner Party yielded evidence of possible cannibalism, but no grand jury was assembled. In 2010, biological anthropologists impugned the popular theory of cannibalism, though many of the 46 survivors, out of 87 pioneers, who had gotten trapped in a terrible series of storms (1846-1847) in the Sierra Nevada Mountains, admitted to partaking in cannibalism. A sector of the Donner Party, known as Forlorn Hope (consisting of 15 members) became lost in the snow and mountains and was dying of starvation. Patrick Dolan, having no family or friends within the expedition, drew the short straw and was killed and eaten.

Packer v The People (1885) 8 Colo. 361; 8 Pac. 564 Alfred Packer was one of a small group of explorers who opted to cross dangerous mountain pass in late autumn 1874 in the Territory of Colorado. The expedition was caught in a snow storm and it was revealed that Packer ate portions of the five men for survival. Packer claimed a pack had been formed and dices cast, one man was shot and eaten, as the others died of hypothermia, they too were eaten. When it came down to Packer and another, Packer opted to pre-emptively kill the other man in self-defence. See: J G Hodges, ‘The Legal Experiences of Alfred Packer’ (1942) 19 Dicta 149.

R v Dudley and Stephens [1884] 14 QBD 273 DC The case of Dudley and Stephens was similar in regards to the Holmes case, where the question for the House of Lords boiled down to necessity. The defendants, along with Brooks (a 17 year old boy), were cast adrift in an open boat, after their yacht sank in a storm, 1,600 miles off the Cape of Good Hope. The defendants killed the boy on the 20th day after the wreck and were subsequently rescued four days later. The defendants were found guilty, though the reasoning of Lord Coleridge, CJ is a bit confusing. As he rejects the notion of necessity as a defence for murder, but then goes on to look at moral sacrifice to save the lives of others.

Procedurally, I tend to side with the reasoning of Keen, J. the justice who reflected the positivist perspective, however Foster, J., who was of the idealist persuasion seemed to make very good substantial arguments regarding the purpose of law, which he regards as varying from statute. It seems that if there are going to be rules, and then there needs to be an expected outcome that can be reached every time certain sets of facts present themselves to the court. Though if the law is counter to the judges gut instinct of what is morally (or ethically) regarded as being justifiable and fair, then the law should provide some margin of judicial latitude. It is on this point that I would tend to agree with Ronald Dworkin, professor of law at Harvard, but it is not to say that we should ignore the black letter of the law in favour of a judge’s righteous or demonic interpretation based on some notion of natural law (which is a very positivist approach to the case at hand).

From first reading the Speluncean Case to the writing of this article, my mind has vacillated between notions of what law is and what should be regarded as law. While I favour the positivist reasoning, I seem to ultimately favour the idealists’ views regarding law.