Global Warming, Corporations Law and Non-Violent Protest

This 1500-word essay was completed for the Law Foundation unit at Western Sydney University in late 2013. Despite the tight word limit, it was worth 40% of the grade and had to cover a lot of ground. I don’t recall how well it performed, but I imagine it received a credit (65–74%) or distinction (75–84%). We were not required to read or research outside the unit textbook and the provided extracts. It is not a particularly good essay and I think the broad question combined with the word limit undermined the assignment’s potential.

Question

Identify and evaluate the ideas and arguments contained in two extracts. You must focus on the extracts themselves, but for context, you may refer to the documents from which they are extracted. Include:

1. identification and logical analysis of the key arguments [structure, premises, conclusion] — including identification of any fallacies; looking at the form of the argument
2. analysis of relevant factual claims or assumptions, including data and causal theory used to interpret such data; looking at the content of the evidence
3. identification and consideration of ethical, political or economic ideas underlying the arguments
4. analysis of relevant legal claims or assumptions
5. your own considered thoughts and proposals in relation to these arguments; your own argument, supported by relevant evidence.

There were three topics from which to choose. Each topic included two extracts. I chose the topic ‘Global Warming, Corporations Law and Non-violent Protest.’ The following background was provided:

An anti-coal mining activist, Jonathan Moylan, has admitted to issuing a fake media release from ANZ Bank pretending that the bank had withdrawn a $1.2 billion loan facility from Whitehaven Coal because of ‘“unacceptable damage to the environment” caused by the company’s Maules Creek coal project. There is a strong prima facie case his actions were illegal according to Section 1041E of the Corporations Act 2001 (Cth). That act states it is an offence if a person makes a knowingly false statement that is likely to make people dispose of shares. The maximum jail term for individuals is 10 years, with fines of up to $495,000. Organisations face fines of up to $4.6 million. Moylan is now being prosecuted by the Australian Securities and Investments Commission (“ASIC”) for serious breaches of corporations law, in allegedly engaging in misleading and deceptive conduct which destabilises the stock market.

Two contrasting extracts were given:

• Spence, Edward, ‘Whitehaven Hoax Was an Unethical Act That Was Harmful to All’, The Conversation (online, 11 January 2013)
• Brown, Bob, ‘It’s Coalminers, not Moylan, Who Are Costing Us the Earth’, The Age (online, 11 January 2013)

Forms of Argument

Brown describes the effects of civil disobedience and attempts to synthesise Moylan into the category of activists who commit illegal acts in order to achieve positive goals.¹ This is an extended inductive analogical argument that can be expressed as:

(P1) Gandhi, Mandela and others are examples of ethical but illegal protest.
(P2) Non-violent but illegal acts can draw attention to serious issues.
(C1) Illegal protests have brought positive change.
(P3) If Moylan committed a non-violent act of protest that drew attention to a serious issue, his actions are comparable to activists like Gandhi and Mandela.
(P4) Moylan committed such an act.
(C2) Moylan’s actions are capable of bringing positive change.

A potential flaw in this argument is the fallacy of weak analogy. Spence argues that Moylan’s actions were intentionally damaging to others and the common good and that there is, therefore, a significant dissimilarity between Moylan and the activists to which Brown compares him.² Determining whether the analogy is weak or not requires analysing the competing factual claims and assumptions, which is done in the next section.

Spence’s argument uses a network of modus ponens and modus tollens forms. There are three arguments that may be characterised as modus ponens (if A then B, A therefore B³) and a fourth as modus tollens (if A then B, not B so not A⁴). The premises below are the start of simple arguments, with arguments 2 and 3 forming an extended argument.⁵

1. If (A) identity theft damages reputations, then (B) stealing an identity is ethically wrong.
2. If (A) everyone relies on the integrity of the information environment, then (B) deliberately corrupting it with disinformation is ethically wrong.
3. If (A) a person spreads disinformation, then (B) they are committing an ethical wrong.
4. If (A) Moylan acted ethically, then (B) he would not intentionally cause harm to others or the common good.

As mentioned, Spence uses the same analogy as Brown to illustrate dissimilarity rather than similarity (argument 4). Spence also uses another analogy that compares the value of the information environment to that of the natural environment: ‘the infosphere is no less important and precious to use than the natural environment.’⁶ His arguments combined inductive and deductive reasoning. Inductive analogical reasoning supports certain premises, while others are statements of fact that are treated as common knowledge. Further, Spence employs ad hominem — specifically a tu quoque — by arguing that ‘Brown would not appreciate having [his] own [identity] stolen and misused’.⁷ This deflects from the substantive issue to the hypothetical hypocrisy of the author.⁸

Factual Claims and Assumptions

Spence appeals to common sense by arguing that identity theft is ethically wrong because it damages reputations. Falsehoods can be used to alter perceptions and, given a reputation is the public perception of an individual or organisation,⁹ they can certainly damage reputations by producing a negative perception. This assumption is sound.

Spence’s argument that Moylan committed an act that is ‘harmful to all of us’ is based on the claim that everyone relies on the integrity of the information environment.¹⁰ Correct information is necessary with contemporary society’s ubiquitous access to information — even in 1938, Orson Welles’ radio adaptation of The World of The Worlds caused panic when it was mistaken as genuine broadcast. Information is frequently taken at face value, particularly when apparently issued by typically accurate or verifiable sources, or purporting to be an official statement, such as a press release from a bank.

A key contention is whether or not Moylan is similar to the activists Brown lists. Spence argues that Moylan is dissimilar because these:

venerable fathers of civil disobedience engaged in just and ethical acts that were not intentionally harmful to others or the common good which they sought to promote. If their acts were harmful at all they were primarily harmful to themselves.¹¹

This seems to be a matter of proportionality. For Moylan’s actions to constitute a legitimate act of civil disobedience, Spence suggests Moylan must have attempted to limit the collateral damage caused, targeted a specific entity rather than causing widespread harm, and brought more harm on himself than he caused to others.

Brown, on the other hand, argues that Moylan is similar because his actions brought attention to important issues — conservation and climate change — and he faces penalties for those actions. This invokes non-violent protest but does not address collateral harm, proportionality of the penalty to the harm caused, or the effects of polluting the information environment.

Both authors compare Moylan to Nelson Mandela: Brown’s comparison is favourable, while Spence’s is unfavourable. Neither is convincing.

Mandela’s actions were far from non-violent, nor did they avoid intentional harm to others or the common good that they sought to promote. In 1961, he founded uMkhonto weSizwe (‘MK’), the paramilitary wing of the African National Congress (“ANC”).¹² ‘Mandela assumed the lead … because he grasped the need for directing, controlling and monopolising violence.’¹³ The MK has been held responsible for bombings that caused deliberate civilian deaths and injuries,¹⁴ landmine campaigns that resulted in civilian casualties,¹⁵ and the ANC itself ‘subjected [suspects] to severe torture and other forms of severe ill-treatment.’¹⁶

To use Mandela as an example of ‘venerable’ civil disobedience in this context is inappropriate. If Moylan is non-violent, as appears to be the case, he is not in the same class of activist as Mandela, discrediting Brown’s argument. On the other hand, Spence cannot use Mandela as an example of ‘positive’ civil disobedience causing limited collateral damage.

Ethical, Political and Economic Ideas

Spence’s argument is essentially that the corruption of the environment cannot be permitted because everyone relies upon it. Corrupting the information environment is unethical because its sanctity requires an ability to trust others contributing to it.

When Spence states that ‘Mr Brown would not appreciate having [his identity] stolen and misused to embarrass [him] or damage [his] personal or political reputation’,¹⁷ he appears to be invoking the categorical imperative: ‘act only according to that maxim whereby you can, at the same time, will that it should become a universal law.’¹⁸ In context, Spence is arguing that unless Brown can agree that identity theft is an acceptable form of protest regardless of whose identity is stolen, it is unethical.

Brown indicates a similar deontological argument by employing the dictum ‘all that evil needs to flourish is for good people to do nothing.’¹⁹ If everyone did nothing, evil would prevail. The difference between the authors is that Spence focuses on the ethical nature of the act itself, whereas Brown focuses on the ethical nature of acting.

Brown’s political and economic ideas incorporate the need for environmental protection against the onslaught of economic pursuits. This is a value judgement that the environmental cost of mining far outweighs any economic benefit it may provide.

Legal Claims and Assumptions

Neither author makes overt legal claims and assumptions about Moylan’s case. Both agree that civil disobedience is a valid form of protest — that breaking the law is sometimes necessary to affect change.

Brown asserts that ‘corporations generally prefer the jury box to the cartridge box’ and that politicians are easily swayed by corporate lobbyists to increase penalties in order to reduce the influence of environmental activists by targeting them through law enforcement and the courts.²⁰ This is illustrated with the Tasmanian Government’s use of anti-loitering legislation to hinder environmental activism under the Gray Premiership (1982–89). Because these kinds of laws are unfair, Brown argues that activism outside the boundaries of the law is necessary to promote ‘national outrage.’²¹ This is supported by reasonable evidence.

Opinion

Although Nelson Mandela is only one example used to support both sides of the debate, he is an exception to the rules that the authors are trying to promote. Mandela is cited incorrectly by Brown as an example of non-violent civil disobedience, and by Spence as an example of civil disobedience that was not intentionally harmful to others.

While contemporary history treats Mandela as a martyr, the military acts of the MK and ANC are assessed as being those of a terrorist organisation.²² Mandela’s actions are now justified as part of the campaign against apartheid, despite the undeniable harm the MK deliberately inflicted on civilians.

Spence argues that Moylan does not belong in the same category as Mandela, but if Mandela’s actions are accepted as valid, Moylan’s ought to be. However, it is hindsight that will ultimately determine whether Moylan’s form of protest was ethical. The authors will presumably, and perhaps ironically, continue to make selective use of facts to support their arguments in the meantime.

Endnotes

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