Over the past few decades, civil disobedience has become one of the most widely studied subjects in jurisprudence. Scholars such as Rawls and Dworkin have offered their unique reflections on the subject. Whilst many have made great contributions to clarify its purposes and justifications, they have neglected one of the most important and fundamental forms of political disobedience, namely revolutionary disobedience. Unlike an act of civil disobedience, which recognizes governmental authority and legitimacy, revolutionary disobedience explicitly denies and challenges them. Manifested as a rupture between the constituent power (ruled/governed) and constituted power (ruler/governor) in a given state, it is designed to terminate the authority relationship between them, signifying a state of exception, which deviates from the juridical norm. Contrary to traditional civil disobedience, which reveals the unjust nature of a particular law or policy, thereby fostering constitutional changes if the government so allows, in a case of revolutionary disobedience the people directly announce their presence to oust the government from office and even reshape the constitutional order as well as create a new state. It is an exertion of popular sovereignty, reengaging the people in the collective authorship of the sovereign will. Hence, an act of revolutionary disobedience is an exercise of self-determination and is inherently democratic. In this Article, I construct a theory of revolutionary disobedience and analyze its correlation with the people (nation), the constitution, the state, and the democratic boundary problem. The theory is further developed with the highlight of two political disobedience movements: the Indian Independence Movement and the Umbrella Movement of Hong Kong. The study exposes the limits of conventional civil disobedience and showcases the ground-breaking role for revolutionary disobedience for constitutional creation. Defending that Hongkongers are a people, I suggest that they can invoke revolutionary disobedience as a direct course of action to engage themselves in the higher law-making of the land and forfeit the authority of the government. The final section offers a reply to the Hong Kong Bar Association, which has accused the last phase of the Umbrella Movement of damaging the rule of law. I make a rebuttal to such contention and further analyze how revolutionary disobedience is perfectly compatible with the rule of law.
Philip K. Y. Lau
Barry Law Review: Vol. 22
, Article 3.
Available at: http://lawpublications.barry.edu/barrylrev/vol22/iss2/3