TO OBEY OR NOT TO OBEY: A NORMATIVE ACCOUNT OF CIVIL SERVANT DISOBEDIENCE Thesis submitted in partial fulfilment of the requirements for the degree of LLM Research Master in Law. Janaína Gomes Garcia de Moraes ANR: 337191 Supervised by H.K. (Hans) Lindahl and L.H.J. (Maurice) Adams Tilburg Law School, Tilburg University The Netherlands August 2018 “Good morning. Why have you just put out your lamp?” “Those are the orders,” replied the lamplighter. “Good morning.” “What are the orders?” “The orders are that I put out my lamp. Good evening.” And he lighted his lamp again. “But why have you just lighted it again?” “Those are the orders,” replied the lamplighter. “I do not understand,” said the little prince. “There is nothing to understand,” said the lamplighter. “Orders are orders. Good morning.” The Little Prince - Antoine de Saint-Exupéry Abstract Since civil servants are in charge of enforcing the law and subject to hierarchy, they are expected to obey orders that are given by superiors. However, full compliance can be problematic insofar as some orders are seemingly harmful to society. On the other hand, unconstrained disobedience destabilizes the state, bringing about uncertainty. Considering the difficulty of reconciling the necessity of stability with the protection against state abuse of power, the possibility of civil servants refusing to carry out assigned tasks is far from exhausted in legal theory. Filling that gap, this thesis establishes the conditions under which a civil servant can legitimately refuse to perform a task from a normative perspective. To achieve this end, a doctrinal method that uses elements of narrative literature reviews (BRYMAN, 2012) is employed. Based on Weber’s (2008) concept of professional politicians, on Bovens’ (1998) contributions to the theme of employee’s civil disobedience, and on Hemmer’s (2014) questionings, civil servants’ duties and rights are identified in order to determine the circumstancess that allow their disobedience considering their role in the state, namely a violation of the civil servants’ duties to employ expertise, act responsibly, and respect democratic decisions. Disobedience under these circumstances is, then, normatively justified as fostering i) checks and balances, as developed mostly by Michaels (2015, 2016); ii) reason, reasonableness, and agency, as discussed chiefly by Hart (1963), Dworkin (1977), Arendt (1964, 2003), and Luban, et al. (1992); iii) and legality, according to the works of Fuller (1969, 1958) and Dyzenhaus (2009, 1996, 2014). The conditions for the exercise of disobedience are, finally, presented and justified, mainly based on Bovens’ (1998) inputs and on the proportionality principle. Keywords: civil servant – disobedience – duty. Acknowledgments This thesis is the closure of a two-years trajectory that counted on the support of many colleagues, relatives, and friends, without whom all this experience would not have been possible. Especially, I am thankful to my husband, Fernando Lichtenheld, whose support from the very beginning throughout this entire enterprise was indispensable to keep me loved, happy, and sane. I am also grateful to all the members of the Research Master, and especially to my supervisors Hans Lindahl and Maurice Adams, for their incentive and help in the construction of this thesis, and to Marianne Scholing, for her kindness during this whole period. My gratitude goes also to my ReMa colleagues, and in particular to Patricio Alvarado, Kyran Gratan, and Jamile Abraham, for the fun and insightful lunches we have shared. TABLE OF CONTENTS 1 - INTRODUCTION .............................................................................................................. 5 2 – LITERATURE REVIEW, PROBLEM, RESEARCH QUESTION ............................. 7 2.1 – Literature review ........................................................................................................ 7 2.1.1 - Introduction ............................................................................................................ 7 2.1.2 - Methodology ........................................................................................................... 8 2.1.3 - Literature Review ................................................................................................... 9 2.1.4 – The gap in the body of knowledge ........................................................................ 13 2.2 – Research problem and research questions ............................................................. 15 2.3 – Methodology .............................................................................................................. 16 3 – CIVIL SERVANT DISOBEDIENCE ............................................................................ 20 3.1 – Working-definition of civil servants ........................................................................ 20 3.2 –The duties and rights of civil servants ..................................................................... 25 3.3 – Civil servant disobedience ........................................................................................ 29 3.3.1 – Duty of expertise and right to independence ...................................................... 32 3.3.2 – Duty of responsibility and right to dignity ........................................................... 34 3.3.3 - Duty of democracy and right to citizenship .......................................................... 35 3.4 – Conclusion ................................................................................................................. 37 4 – THE JUSTIFICATION OF CIVIL SERVANT DISOBEDIENCE ............................ 39 4.1 - Checks and balances .................................................................................................. 40 4.2 – Reason, reasonableness, and agency ....................................................................... 43 4.3 – Legality ....................................................................................................................... 47 4.4 - Conclusion .................................................................................................................. 51 5 – GUIDELINES FOR CIVIL SERVANT DISOBEDIENCE ......................................... 53 5.1 - Specific conditions for a lawful and legitimate civil servant disobedience ........... 53 5.1.1 – The substantive test .............................................................................................. 54 5.1.2 – Procedural instructions ....................................................................................... 58 5.2 – Justifying the conditions at the individual level ..................................................... 64 5.3 - Justifying the conditions at the interlocking-group level ....................................... 66 5.4 - Conclusion .................................................................................................................. 68 6 - CONCLUSION ................................................................................................................. 69 Bibliography ........................................................................................................................... 73 5 1 - INTRODUCTION Nowadays, resisting the legal order seems to deserve a permanent section on the news. All over the world, taking to the streets as an act against the government or some of its measures is a political manifestation that characterizes this decade. Although showing dissatisfaction with the system is not a new phenomenon, it seems to have come into fashion again. The indignation protests—as Boaventura de Sousa Santos (2015) terms the Arab Spring, Occupy Wall Street, and the Brazilian protests of 2013—as well as the Kurdish and Catalan plebiscites in 2017 are examples of this renewed trend of defying the system, the established power, and the law. These are just a few examples, many others can be found around the globe. Yet, challenging the posed order does not manifest only in big, crowded, broadcasted protests. It can take place at the individual level, in resilient gestures of everyday life that, frequently, go unknown to the big public at large. This research is about these often less famous acts that this research is about, with a particular interest here is resistance practiced by civil servants. The peculiarity of their bond with the law brings into question whether they can disobey orders given by superiors, and if so, how. If every citizen is already bound by the law, civil servants have a plus: they make a living out of enforcing the legal order, receiving not only salaries from this, but also social prestige and trust. Civil servants who refuse to carry out an assigned task find themselves in an uncertain position. They can be seen either as traitors of their public functions, unelected politicians, ideologues, inert, or capricious. On the other hand, they can also be praised for their courage, commitment to higher values, fidelity to principles, innovation, and versatility. Whether one or the other image prevails depends much on personal dispositions toward the disobeyed object. It is only natural to be inclined to defend those who resist performing an act we believe to be incorrect. However, civil servants cannot be left to judge case by case, but rather they need a stable framework to guide their actions and that courts and tribunals can use to assess civil servant disobedience. These guidelines are still absent in legal