ts. Criminal and punishable, or civil disobedience in the wake of a Gandhi and Martin Luther King? We are talking about activists for climate protection, who are sticking themselves out on streets and elsewhere. But what happens if an ambulance arrives too late at the site of an accident because of this and the person involved in the accident dies? This happened recently in Berlin and was mostly glossed over in the media.
Marcel Niggli, Professor of Criminal Law and Philosophy of Law at the University of Fribourg and, among others, author of the commentary on the Swiss criminal law on racism, speaks out clearly. Niggli firmly rejects the idea that the climate issue constitutes a state of emergency that justifies such action, as the activists claim: “A state of emergency refers to a situation that entitles me to intervene in the legal interests of another person in order to save myself from an imminent danger. According to the law, this danger must be ‘immediate and not otherwise avertable’.” In the case of the climate activists, both is lacking. Under current law, climate change is not an imminent danger. Moreover, especially in direct-democratic Switzerland, it “can very well be averted in other ways than by blocking the streets. For example, by launching a popular initiative.”
Niggli also clarifies the common misunderstanding that the actions are “civil disobedience”, i.e., something legitimate, even “good”, forward-looking. “Civil disobedience” is a term from legal philosophy: “The American Henry David Thoreau coined that phrase in the 19th century. He said the US was an unjust state as long as it recognised slavery.” Thoreau therefore refused to pay his taxes and became a journalist, with late influence on Mahatma Gandhi and Martin Luther King. Niggli points out, “Importantly, Thoreau’s norm-breaking was not directed against uninvolved third parties, but against what he saw as a state that fails. And it was non-violent. Neither a blockade nor a trespass fulfils that. Both are encroachments on the freedom of another, and that is, in the criminal law sense: violence.” Moreover, Thoreau had not justified himself and accepted the punishment for his breach of norms.
Niggli points out that the term is being used completely wrongly, since one can only be disobedient to someone whom one has to obey. “If I take away your snack or smear pictures in a museum so that the state notices that something is wrong, that is not disobedience. That’s more like extortion in terms of its basic structure.”
Niggli counters the often-voiced statement of the activists that in the face of climate change there is not enough time for democratic means: “If there is not enough time to comply with the law, then we can give up anyway!”
Niggli neither allows the media shirk their responsibility. In the age of attention scarcity, the media are the real addressees. Criminal offenses are reinterpreted as political manifestations: “If someone openly parks his car in a no-parking zone, he is fined – and that’s it. But [...] if he turns it into a form of protest against the green traffic policy, then it’s just annoying.”
Requests should be submitted politically according to the rules of direct democracy. But if one interferes with the sphere of other people, then the right is at its end. “That is precisely what the law should prevent.”
Niggli also warns of the erosion on the rule of law or even a breach of the dam – with historically known consequences: “It is not possible for someone to say they are fighting for the good – and then be allowed to do anything. If someone commits trespass because they want to check whether all the appliances are turned off in someone else’s private home, there is certainly a good purpose, and trespassing is not the most serious offence. “But is that what you want? If someone can break rules for the sake of the climate, why can’t right-wing extremists do the same for the sake of their goals? We need rules about who can enter which sphere and when. And we have them at present. They are called law.”
Unfortunately, these rules, and thus our constitutional state, have become fragile. Niggli warns against continuing down this path, which can only lead to the abyss. He does not like saying this because it sounds pathetic, and in doing so he opens his eyes beyond the Helvetic horizon: this is precisely why the Weimar Republic failed, “that no terrain was found on which one could negotiate with each other rationally and without judgement”. Everyone thought that the only thing that was useful was to shout at the other person or to use violence against him. “If we go down this path, things will get really bad.”
It is to be hoped that the climate activists and the journalists involved will take Nigglis’ words seriously and go back to their civics lessons – after all, the latter at least still went through schools at a time when lessons were held on Fridays. The second wish would be that they listened well in history and civics lessons – or is this also just a pious wish, because history and civics have been cut back for years and/or were taught by teachers who have lost their sense of the concept of peace in direct democracy, for example, because of their enthusiasm for the EU? The all the more important for all of us, therefore, are lessons in civics and law such as those given by Professor Marcel Niggli. •
Source: NZZ am Sonntag of 6 November 2022
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