In my last posting on Rawls I looked at the account of the justification of civil disobedience that is provided in A Theory of Justice and in this posting I am going to discuss the last part of his account of the topic of civil disobedience. This final part of Rawls' discussion concerns the "role" of civil disobedience within a constitutional system and its connection to a democratic polity. This account not only concludes Rawls' treatment of civil disobedience in Theory it also closes both Chapter VI and the second part of the book, the part that has been concerned with "institutions".
Rawls, as is consistent with his treatment both of the "definition" of civil disobedience and its "justification", places his view of its "role" within the context of an account of a society that is nearly just. This involves, amongst other things, the view that the society in question is, broadly speaking, democratic. One of the features of a democratic society on Rawls' conception is that it is a form of society within which there is a broad public recognition of the principles of justice and so, when civil disobedience is resorted to, it is invoked as a way of addressing the sense of justice assumed already to exist within the society in question. This is an important point and is connected to the kinds of grievance that Rawls indicated justify the appeal to civil disobedience, grievances, for example, of a minority unjustly discriminated against. It is because a democratic polity implies the sense that persons are equal that it is legitimate to appeal against unjust discrimination against some whereas a society that did not adopt this principle of moral equality would not be moved by an appeal to a sense of justice that included this principle.
It is also indicated by Rawls that part of the "role" of civil disobedience in the type of society in which he envisages it being resorted to is to stabilise the society in question by inhibiting departures from the principles that the society itself publicly acknowledges as just ones. The general discussion of civil disobedience has been set out in the chapter in which Rawls is discussing principles of natural duty and obligation and this background is explicitly invoked again when the "role" of civil disobedience is discussed.
In the original position persons need to look at guidelines for the strength of the obligation to comply with a just constitution on the one hand and find reasonable principles for dealing with unjust situations on the other. Given these assumptions it follows for Rawls that the justification previously discussed of civil disobedience is one that would commend itself to persons in the original position. Denying justice to another is failing to treat them as equals and is thus in violation of the second principle of justice. Given this point infraction of the principles of justice is something to which civil disobedience is a reasonable response and a response that will strengthen rather weaken the principles of justice.
Further the theory provided by Rawls of civil disobedience is one that belongs within his conception of justice and is based on no principles other than political ones. Civil disobedience on this view appeals to the "moral basis of civic life" and thus upon common sense principles of justice. This is why Rawls takes it to be part of "the theory of free government". The theory of civil disobedience is seen by Rawls as a supplement to a purely legal theory of constitutional democracy that attempts to formulate the way in which legitimate democratic authority can be dissented from in a way that, whilst illegal, does not depart from the aims of the democratic constitution.
Having laid out this understanding of the role of civil disobedience Rawls considers a basic objection to his account grounded on a conception of moral psychology that basically denies that a sense of justice is a real motivating factor for political actors. In response Rawls reiterates that the conception offered is part of his view of a nearly just society which thus possesses a collective sentiment of considerable strength. Given this is so it is reasonable to assume that courts, in sentencing those who have committed civilly disobedient acts, will acknowledge the commitment that such acts have continued to show to the basic principles of justice that animate the constitution.
It is not necessary, on Rawls' view, that the way the appealed to "sense of justice" is understood is in terms of requiring self-sacrifice to an unreasonable degree. It is rather that the sense of justice will temper the responses to acts of a civilly disobedient sort. Similarly it is not required that all citizens understand the principles of justice in entirely the same way since an "overlapping of professed conceptions of justice" that leads to endorsement of the constitutional order in general is sufficient. There is a problem here that is mentioned perhaps too briefly, however, and which affects the possible rise of intolerant groups who use the provisions for civil disobedience in a reckless and cynical way. Rawls in response invokes the striking notion that such intolerant citizens are akin to "free riders" who seek the advantage of free institutions without doing their share to uphold them. Questions could here be pursued much further about this matter but Rawls moves on here perhaps too swiftly.
There are, however, risks acknowledged with regard to civil disobedience and here Rawls comes closer to indicating reasons why many are inherently suspicious of the very idea of civil disobedience. A prime risk is, for example, that the public reading of the political conception of justice is here being contested and that it is, as Rawls puts it, "at a certain point better that the law and its interpretation be settled than that it be settled rightly". This conservative point is the basis of appeal to sovereign power as against an active citizenry. The problem can be put at its starkest as a threat of anarchy. Rawls in a sense concedes some of the power of this counter-argument agreeing that it is ultimately the case that the theory of civil disobedience does acknowledge latitude for the citizen in terms of their understanding of the limits that apply to their adherence to the principle of the rule of law. However, whilst the theory of civil disobedience does thus invoke a possibly troubling threat of relativism Rawls curtails this by appealing to the point that the theory set out is not one that is arbitrary in its standards since it appeals throughout to the principles of justice taken to guide the society in question. Because of this the citizen who reaches the conclusion that an act of civil disobedience is required is not one who can be taken simply to be acting from personal motives but is rather invoking a deeply political conception.
Another way of putting this point is a democratic society, on Rawls' conception of it, is one that does assume responsibility by each citizen for their interpretation of the principles of justice. This is so even though the provision of a supreme court is meant to finally decide all such disputed questions. The point of such an institution is to articulate in terms of public reasons the basic principles of the constitution and their application. But a court is also fallible and has no other persuasive power than that of reason. So there does exist no final means of preventing the possibility of civil strife even though sovereignty theorists since Hobbes have wished to achieve this. In making this point Rawls even points to the conduct of constitutional authorities as equally at stake with those who commit acts of a civilly disobedient nature if matters seem to be in crisis between them.
With these remarks Rawls closes his account of the role of civil disobedience, the chapter on duties and obligations and the second part of Theory which has concerned institutions. The theory of institutions provided is part of ideal conceptions even though the discussion of civil disobedience points up a sense in which there can be questions in dispute even in well-ordered societies. The point of raising this question has been to show the connection between ideal and non-ideal theory and now in closing the account of institutions Rawls has exhausted two-thirds of Theory. Future postings will be concerned with the third part, which is focused upon what Rawls terms the "ends" of the theory thus far provided.