[1.3.2.7.] Dilemmas and Duties.

 

According to Rawls, the issue of civil disobedience (CD) involves a moral dilemma:

 

moral dilemma (df.): a situation in which you must choose between two things, each of which is morally valuable; the choice between the two is forced, so one thing of moral value must be sacrificed.

 

The moral dilemma posed by the issue of CD is a conflict between:

1.       “the duty to comply with laws enacted by a legislative majority”

2.       “the right to defend one’s liberties and the duty to oppose injustice”

CD would require that you sacrifice (1) in order to protect (2).

 

If CD is sometimes morally justified (as Rawls believes), then the first duty is not absolute—there are times when it is outweighed by more important duties. In other words, the first duty is merely prima facie:

 

 prima facie moral duty (df.): a genuine duty which can be outweighed by other, more important duties in some circumstances. (“Prima facie” literally means “first face”: a prima facie duty is one that looks like you are bound by it at first glance, but as it turns out, there are more important moral considerations that release you from that duty.

 

 

[1.3.2.8.] Rawls’ Definition of Civil Disobedience.

 

                I shall begin by defining civil disobedience as a public, nonviolent, conscientious yet political act contrary to law usually done with the aim of bring about a change in the law or policies of the government. (19)

 

According to Rawls, in order for an action to count as civil disobedience (and not be merely a case of breaking the law, the following conditions must be met [each of these is a necessary condition of civil disobedience]:

 

1. The action must be illegal (“contrary to law”)

 

2. The action must be public.

• it is performed openly, in full view of others
• this is because it is, in essence, meant to communicate a message—it is a way of addressing one’s government and fellow citizens

 

3. The action must be political, in that it is

·         CD is “an act guided and justified by political principles, that is, by the principles of justice which regulate the constitution and social institutions generally” (19-20)

·         the message communicated by CD is “addressed to the majority that holds political power”

 

4. The action must be conscientious, i.e. motivated by conscience.

·         it is a way of expressing one’s conscience regarding perceived injustice

·         by engaging in CD, you declare that a law or policy is unjust: “one addresses the sense of justice of the majority of the community and declares that in one’s considered opinion the principles of social cooperation among free and equal men are not being respected.” (19)

 

5. The action must be non-violent. Rawls gives reasons for this:

a.       “To engage in violent acts likely to injure and to hurt is incompatible with civil disobedience as a mode of address” (20, emphasis added)

b.       Non-violent CD “helps to establish to the majority that the act is indeed politically conscientious and sincere, and that it is intended to address the public’s sense of justice. To be completely open and nonviolent is to give bond of one’s sincerity, for it is not easy to convince another that one’s acts are conscientious, or even to be sure of this before oneself.” (20, emphasis added) In other words, non-violent protest is more likely to succeed because it is more likely to be seen by the majority in one’s society as sincere.

 

Another condition that Rawls seems to think is necessary for CD (a condition not mentioned in the short definition he states but that he reveals later on) is as follows:

 

6. The person performing the act must be willing to accept the legal consequences.  There are two aspects to this:

a.       (This is the same as the second point made above, with regard to nonviolence): To engage in CD is to provide a moral example to one’s fellow citizens, and to demonstrate the sincerity of one’s objection to the unjust law, one must be willing to pay the price for violating the law.

b.       Unlike a militant (someone who engages in combat or warfare in order to cause political change), someone engaged in CD has faith in the overall, general political structure of his or her society his or her actions, although illegal, are “within the bounds of fidelity to law.”(21) There is no fundamental opposition to the government or legal order itself, so the disobedient will want to bring the law only so much as is absolutely necessary to make his or her point.

 

 

[1.3.2.9.] Direct vs. Indirect Civil Disobedience.

 

Rawls’ definition of civil disobedience allows for the distinction between:

 

·         direct civil disobedience: disobeying the law that you wish to have changed.

 

·         indirect civil disobedience : disobeying a law other than the one you wish to have changed, e.g., traffic or trespassing laws, in order to call attention to another, unjust law.

 

Examples of indirect civil disobedience:

·         Suppose that the legal punishment for treason is death, and you believe that this punishment is unjust. However, it would be inappropriate for you to commit treason in order to call attention to this unjust, and even if you were willing to do so, it might be too much to expect that you would risk your life in such a way. But you might call attention to the law by breaking some other law, e.g., a law against trespassing (by protesting on government property).

·         Suppose that you want to protest your government’s foreign policy. This is not the sort of law that it is possible for a citizen to break, but you can protest by breaking other (just) laws.

 

 

 

[1.3.2.10.] A Public Standard of Justice.

 

Rawls holds that one cannot justify CD simply by appealing to one’s one personal morality or religious convictions. If an act of CD is to be justified, it must be justified by appealing to something non-personal: a standard of justice that is “public,” shared by the community.

 

Rawls assumes the following principle about justice: “in a reasonably just democratic regime there is a public conception of justice by reference to which citizens regulate their political affairs and interpret the constitution.” (20)

·         This public conception of justice is the standard against which those engaging in CD can compare the law they believe to be unjust in order to demonstrate to their fellow citizens that it is unjust.

·         They do not use their own personal moral standards or religious standards.

 

As we have already seen, Rawls endorses a very specific public standard of justice. It consists of two principles that are the core of his Theory of Justice:

 

The Principle of Equal Liberty. Each person should have the maximum amount of liberty compatible with the same amount of liberty for everyone else.

The Second Principle of Justice: Inequalities in distribution of goods (wealth, income, authority, etc.) are justified only if (a) they work to the advantage of the worst off persons in society and (b) the positions to which greater goods and authority accrue are open to all persons.

Clause (a) is known as the Difference Principle; clause (b) is known as the Equal Opportunity Principle.

 

 

 

[1.3.2.11.] Conditions that Justify Civil Disobedience.

 

Rawls states “reasonable conditions for engaging in civil disobedience” (21):

 

REASONABLE CONDITION #1: this has to do with the types of injustice at which the CD is targeted: CD should be limited to “instances of substantial and clear injustice...” For this reason, there is a presumption in favor of limiting CD to:

·         “serious infringements” of the principle of equal liberty (Rawls’ first principle of justice)

·         “blatant violations” of the equal opportunity principle (the second clause of Rawls’ second principle of justice)

 

Examples of such infringements and violations include:

 

…when certain minorities are denied the right to vote or to hold office, or to own property and to move from place to place, or when certain religious groups are repressed and others denied various opportunities, these injustices may be obvious to all. (22)

 

 

REASONABLE CONDITION #2: this has to do with what those who engage in CD must do before CD is justified: CD must be a last resort, in the sense that they must have exhausted all legal means of attempting to correct the injustice, and those legal attempts at change “have shown the majority immovable or apathetic” (22), so that it is reasonable to think that further legal action will do no good.

·         This is merely a presumption – there may be instances of injustice that are so over-the-top that immediate CD might be justified, without first attempting to eliminate the injustice through legal means.

 

 

Stopping point for Wednesday January 24. For next time, read pp.23-34.