Articel Content
Should we always obey laws, Raphaela Cueni?
Text: Raphaela Cueni
Anyone who breaks an existing law must face the consequences. What reasons are there for not obeying the law in spite of this?
It would be rather impractical to live in a society in which each member obeyed only those laws he or she deemed just or convenient in any given situation. So, on the grounds of practicality alone, there are good reasons why those subject to legally established laws – or those implemented in accordance with due process – should endeavor to abide by them.
It would also run counter to the central tenets of our constitution – such as the separation of powers or equal rights under the law – if public authorities were to arbitrarily enforce only those legal standards that they held to be just or expedient on a case-by-case basis. This kind of legal system would be unable to ensure that the law is transparent and predictable.
Yet this is not intended to imply that those subject to a particular set of laws are obliged to accept them absolutely and unquestioningly. To the contrary, laws, regulations and even the constitution can and should change. A democracy relies on the assumption that each and every citizen accepts the rule of law as their own. There are a range of mechanisms in place to realize this ideal of so-called self-legislation. In Switzerland, this includes instruments of democratic participation such as popular initiatives as well as representative democracy and federalist structures. The legal system also provides opportunities to mount legal challenges against certain laws and regulations or, in conjunction with concrete cases, to have these regulations reviewed by a court of law to determine whether they are constitutional.
In critical examinations of existing laws, a special status is granted to the fundamental rights enshrined in the constitution, such as freedom of speech and freedom of assembly. These provide each individual with the right to express their opinion, regardless of whether that opinion is demonstrably erroneous or flatly devoid of merit in civil society. Furthermore, each individual is free to assemble with others for the purpose of publicly expressing their discontent in line with said personal opinions. Public protests against provisions considered to be unjust are not simply tolerated under the legal system; indeed, they are an integral part of the system itself. Accordingly, it is a matter of great concern when restrictions on free speech or assembly are suggested or imposed because the opinions being expressed have been judged irrational or incorrect.
These fundamental constitutional rights place substantive restrictions on the powers of lawmakers and executive actors. They ensure that public authorities are unable to unduly impinge upon the rights of the individual. In cases in which the aforementioned democratic and legal structures prove insufficient, the fundamental constitutional rights rein in the power of the state.
The current constitutional framework is, to the greatest possible extent, therefore designed to prevent the passage of any unjust laws that might rightly warrant widespread resistance. And, finally, the regulations deemed to be unjust in the context of the Covid-19 pandemic differ fundamentally in the degree of injustice from scenarios in which a requirement of non-implementation of extremely unjust laws is generally assumed to apply.
Note: This article was written in August 2021 and is based on developments up to that date.
Raphaela Cueni is a postdoctoral researcher and lecturer in public law. Her research focuses on questions of transparency in state policy. She also studies current issues in the law of freedom of expression.
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