Tuesday, 6 March 2012

Rawls and the Justification of Civil Disobedience (II)

Sometime ago I posted a piece on Rawls' 1969 article concerning the justification of civil disobedience. Since I have, more recently, been going through Chapter VI of A Theory of Justice where Rawls returns to the topic of civil disobedience and distinguishes it from conscientious refusal, I will, in discussing in this posting the account of the justification of civil disobedience Rawls provides in this chapter, reflect also on how it relates to the earlier justification given in his 1969 article.

Rawls opens the account of the "justification" of civil disobedience in Theory by limiting it to cases of domestic institutions and thus to responses to injustice taken to be internal to a given society though he conjoins this with a parallel account of conscientious refusal with regard to questions of war, which latter is worth returning to in the light of Rawls' interestingly different discussion in The Law of Peoples.

Rawls begins by laying out what he terms "reasonable conditions" for engaging in civil disobedience and this opens with a description of the type of wrong against which it would appear right to respond in such a fashion. The wrong in question should be, indicates Rawls, a "substantial and clear injustice" and preferably be of a kind that obstructs the path to removing other kinds of injustice. The substantial nature of the injustice thus protested against is clearly meant to limit the opportunity to appeal to this kind of protest given that it is a protest which is, as Rawls indicated earlier in this chapter, at the "limit" of adherence to the rule of law. The "presumption" is in favour of restricting civil disobedience to infringements of the first principle of justice and to blatant violations of the second part of the second principle, namely the principle of fair equality of opportunity.

Examples are provided of the kinds of violations that would fall under these headings including denial of the right to vote or hold office for minorities or the denial of other basic rights to them such as the right to own property or to freely change habitation. These injustices have the characteristic in common of being publicly expressed and thus visible in nature. However the question of the appropriate response to denial of the difference principle is more difficult for Rawls since, as he puts it, there could be "a wide range of conflicting yet rational opinion" as to whether it was being satisfied. Given this it follows that protest against tax laws taken to be unjust would not, at least "normally", be eligible for response by reference to acts of civil disobedience. In indicating the restriction in relation to "normality" Rawls appears here to leave open complaint that the case in question is not, for some given stated reason, "normal" and it is notable that this restriction would have ensured that protests against a "poll tax" for example, would not correctly be met with by acts of civil disobedience.

The question of "normality" is however addressed in Rawls' second criteria of justifiable civil disobedience which defines it by reference to "normal appeals" to the political majority. Rawls here evidently means appeals that conform to the usual political processes have been made but the majority have not responded to these appeals. However, even here it is still required for Rawls that it be demonstrated in some way that civil disobedience is "necessary" by which he appears to mean that further resort to the usual political processes has become evidently shown to be useless in some way. This second criteria is, like the first one, a presumption but in the case of this second criteria Rawls also points out that cases may be so extreme that there is no duty incumbent on the aggrieved party to use only legal means of opposition. A case cited would be if the religion of a minority were outright banned.

The third and last condition Rawls gives is described by him in unusually turgid terms but can be described rather more briefly than he does by reference to "fairness" in exercise of the right to civil disobedience. Essentially what is here described is that it is possible distinct minorities have separate reasons to protest by means of the use of civil disobedience but that if all do so the protests of each will thereby receive less attention and hence the point of the protests of each will be diminished. This requires, therefore, some kind of understanding to be reached between the different minorities in regard to the fair ways in which such protests can be coordinated and planned. Having listed these conditions Rawls turns next to the pragmatic matter of the question of the prudence of turning to the use of civil disobedience as a factor that has to be considered by the aggrieved parties though this is hardly part of the theory of justice in his sense. 

The account given in Theory can be usefully contrasted with that provided in the earlier 1969 article as in the previous piece Rawls referred to 4 conditions under which civil disobedience could be justified and these are not entirely coterminous with the criteria listed above. In 1969 the first criteria given was that there was no "normal" means of addressing the grievance in question which we have found repeated in Theory where it is defined clearly which it was not in 1969. The second criteria in the earlier article was that fundamentals should be involved in order to appeal to civil disobedience which is repeated in the reference to "substantial wrongs" in Theory. Just as would be repeated in Theory it was also here made clear that violations of the difference principle would not be sufficient to qualify. However a generality requirement was invoked in 1969 that Rawls does not discuss in Theory to the effect that recognition of cases in which one felt oneself entitled to civil disobedience has to meet the same standards one would apply to others in similar cases and it is unclear why this was dropped in Theory. Also, in 1969, Rawls does not invoke prudential considerations but rather ones of efficacy as ones that should weigh for the aggrieved parties. Whilst efficacy does not really relate to the theory of justice any more than prudence it is more linked to a theory of institutions than prudence alone is.

Rawls' subsequent discussion in Theory concerns the justification of conscientious refusal, a topic not considered in 1969 and which relates not to domestic institutions but to foreign policy. In considering this topic Rawls extends the theory of justice beyond the closed society model that is dominant in Theory to the law of nations. This extension is related to the question of serving in wars as this relates to political objections to the wars in question. In making this extension Rawls explicitly extends the veil of ignorance so that it encompasses citizens of different states in order to nullify the contingencies and biases of history. The principles of justice that are assumed to be chosen in these circumstances  provide for equality of rights which guarantees a principle of self-determination, self-defense and the sanctity of treaties. The point of these principles is to define the nature of just causes for war and the means that could be used during war. In stating these Rawls is concerned to constrain the activity of war so that a just peace can emerge from it.

Given these points the consideration of conscientious refusal relates to the principles of justice that are taken to have been shown to be reasonable for states to observe. Soldiers are thereby released from following orders that contradict the basis of just war-making. The question of the basis of refusal to serve in war is also addressed by reference to the general theory of just rules that govern states. So wars that are not ones of self-defence are clearly wars that it is legitimate to refuse to serve in and similarly wars that were prosecuted in unjust ways could be objected to in the same way. In sufficiently grievous cases there would be a duty and not only a right to conscientious refusal. The inclusion of rules of discrimination based on the principles of justice is thus recommended by the theory of justice as part of domestic right for states that are well ordered and they should replace exemptions that refer only to pacifist convictions or religious grounds. This would ensure that the recognised right of conscientious refusal would be seen to have a political character and not merely to be based on individual moral or religious claims.

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