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.
Showing posts with label civil disobedience. Show all posts
Showing posts with label civil disobedience. Show all posts
Thursday, 8 March 2012
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.
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.
Wednesday, 22 February 2012
Rawls and the Definition of Civil Disobedience
Rawls' account of the "definition" of civil disobedience follows after the discussion of the sense in which there is a "duty" to follow unjust laws, which latter was described in the previous posting. The topic of civil disobedience takes up the rest of Chapter VI and was also addressed in an article of 1969 that I posted on here.
The account that takes up the rest of Chapter VI of Theory is included in order, as Rawls puts it, to "illustrate the content of the principles of natural duty and obligation". Hence the question of civil disobedience is viewed by Rawls as an exemplary question with regard to such principles. The theory is, as it was in the earlier 1969 article, narrowly defined as it describes actions that are related to a nearly just society which has an established democratic authority. It is not intended to be applicable to cases where resistance to patently unjust social and legal orders is at issue. However, whilst this element of the theory of civil disobedience is of a piece with the earlier 1969 article, Rawls is careful in the account in Theory to distinguish three parts of the theory of civil disobedience. The three parts encompass the definition of civil disobedience, its justification and the role it plays within a constitutional system. The earlier piece, by contrast, was intended primarily to give a justification of civil disobedience although the basic definition that Rawls gives in Theory is not different from the one he gave in the 1969 article. What is distinct, however, is the way that he now defines civil disobedience in such a way that it is made distinct both from conscientious refusal and militancy.
The general definition, that is unchanged from the 1969 article, is that civil disobedience is "a public, nonviolent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in the law or policies of the government". This definition encompasses a number of elements but it is useful, in light of Rawls' purpose of distinguishing the phenomena of civil disobedience from conscientious refusal to see that his definition of civil disobedience describes the latter as a conscientious act. What, as we will see, distinguishes it as a conscientious act, from conscientious refusal, is its political character. The second point worth immediate attention is the reference to the kind of political act that civil disobedience is. It is the kind that seeks to bring about a change in "law or policies", not one that is aimed at destabilising the government as such and certainly not one that challenges the system of justice as a whole. This is how the description of civil disobedience is distinguished from action of a revolutionary (or as Rawls also terms it) "militant" kind.
Having made this initial pass at how civil disobedience will be given a specific status that is intermediate between conscientious refusal and "militancy" Rawls provides two glosses on the definition he has just given of civil disobedience. The first gloss concerns the way that such disobedience involves breaking the law. It is not a requirement that, for the act to be understood as civilly disobedient, that the law that is broken in performing the act, be the same as the law protested against. There are clear reasons for this since the law protested against could be one the breakage of which involved severe penalties or not to be capable of being engaged with by an ordinary citizen. So the civilly disobedient act can be one that is not directly aimed at the law protested but which instead indirectly aims at it by means of expressive law-breaking.
The second gloss, however, is that the civilly disobedient act, to be seen as one, should decidedly be one that does break the law and does not merely present a test case for a constitutional or legal decision. The latter case would be one where, should the law broken be subsequently upheld, the law-breaker would then come to accept the legitimacy of the law which they had broken. In a case of civil disobedience subsequent legal opinion is not to the point concerning the status of the law-breaking. The civilly disobedient actor does not renounce their act simply because subsequent legal opinion tells them the original law is sound in terms of the legal system's rules. So whilst the act need not be directly aimed at the law protested it has to be an act whose status as justified is not disclaimed by the one performing it regardless of normally decisive legal statements.
These two glosses refer to two ways in which civil disobedience is related to the law. The next topic Rawls discusses concerns the relationship of civil disobedience to politics. There are two different ways that Rawls takes civil disobedience to be related to politics. On the one hand, civilly disobedient acts are addressed to the majority that is assumed to at least tacitly support the status quo and this address indicates it is part of the public sphere. On the other hand, civilly disobedient acts are guided and regulated by political principles, not principles of personal morality or religious doctrines. So acts of civil disobedience invoke "the commonly shared conception of justice that underlies the political order" or, to put this point another way, appeal to the principles of justice in order to point up ways in which the laws protested against are taken to be in sharp divergence from them.
At this point Rawls moves on to the point that the civilly disobedient act is a public act. This is another way in which the act is political. It is not a secretive act, intended to evade surveillance, it rather takes place in the light of day and is intended to be known to all. This is, indeed, essential to its character of appealing to the sense of justice of the majority. Attached to this public quality of civil disobedience for Rawls is the fact that the act in question is one that is non-violent. This non-violent quality is part of the civic nature of the civilly disobedient act as violence will impair its ability to act as a mode of address to the majority. It is also non-violent, on Rawls' conception, due to the claim that it is an act that expresses disobedience "within the limits of fidelity to law" although it is right at the edge of such fidelity. Part of what is involved in such fidelity is another reason for the publicity of the act. Given its publicity, the act will incur sanction from legal authority as an evident corollary and this is accepted by the one undertaking the act. This willingness to undergo the penalty, despite the assurance the one undertaking the act has that their action was a just one in reaction to unjust circumstances, is indicative of a claim on the moral consideration of the community.
The references to the non-violent and public quality of civilly disobedient acts allows Rawls to contrast such acts with those of the "militant" or revolutionary as the latter acts under no obligation to either publicity or acceptance of legal consequences. The reason why such action, in contrast to that of civil disobedience, has no necessary relationship to publicity, is that it is part of a settled conviction that the general system of justice, and not merely some element of its application, is deeply wrong. Whilst such action would have to be addressed within a Rawlsian conception of non-ideal theory in relation to basic structures that were not taken to be just, it has no place within the theory of justice but rather defines an action, in relation to a nearly just society, that is itself unjust.
However, Rawls is rather more concerned with describing the definitional difference between civil disobedience and conscientious refusal than with demarcating civil disobedience from militancy. This second part of his task requires him to provide an extended description of conscientious refusal that mirrors his account of civil disobedience (and such an extended account of militancy is not provided for reasons indicated). Conscientious refusal is defined by Rawls as "noncompliance with a more or less direct legal injunction or order". Notably, the inclusion here of reference to a specific legal injunction or order shows that conscientious refusal is distinct from civil disobedience in the sense that it cannot be indirect. It is the specific law protested against that is here broken. An example would be that of a pacifist who refused to heed the call-up. Given that the call-up specifically requires the pacifist to be engaged in the conflict to which they object they can only pursue their conviction in direct violation of it. There is a slight complication since it may be possible to evade the order without being detected and so to act covertly which would be, states Rawls, an act of conscientious evasion but notably this brings out that conscientious acts, considered merely as such, lack the necessary reference to publicity that we disclosed as essential to civil disobedience. Given this difference, there is an immediate sense in which conscientious refusal is not political in the way that civil disobedience is.
Thus far we have seen that conscientious refusal has to be direct and is not necessarily public. However, a further contrast between it and civil disobedience is that conscientious refusal is not an address aimed at the sense of justice of the majority. In not being so it is removed from the public sphere in another way and further indicated as a non-political form of action. The one who undertakes acts of conscientious refusal is like the militant in the sense that they lack confidence in the settled principles of justice of the society they belong to. The principles appealed to in conscientious refusal also need not be political. Religious or moral principles that exceed the limits of the political are frequently appealed to directly in acts of conscientious refusal.
The cases of conscientious refusal pose certain problems for the theory of justice and some of these problems have arisen explicitly in recent cases. So, for example, religious persons who refuse to undertake actions they declare in violation of their conscience and yet are public employees may lose their employment as they are ceasing to act in ways that have civil validity. In such cases, however, the religious convictions are prompting action that violate the requirement of respect for equal liberties (the first principle of justice) and so cannot be taken to have political rationale. It is precisely due to such a claim that there is action involved here which has no basis for appeal to the general sense of justice.
This does not mean that there is nothing politically instructive involved in actions of conscientious refusal as the case of the pacifist illustrates well. Pacifists are generally treated with a margin of respect and given alternative occupations once their adherence to their position is validated. The reason for this treatment, not one accorded in general to those who appeal to principles of conscientious refusal, is due to the degree of affinity that exists between pacifist principles and political ones. There is an inherent reference within pacifist statements to general criteria that are related to, if also distinct from, political ones and the arguments of pacifists contribute to vigilance with regard to justifications for conflict and in this way serve a civil end.
The discussion in this posting has concerned only the general definition of civil disobedience and the contrast between it and the cases of conscientious refusal and revolutionary principles. However nothing in this discussion has as yet given a clear argument justifying civil disobedience or indicating the nature of the kinds of conscientious refusal that might be politically justified other than to specify some kind of connection to the principles of justice. This question of justification will be the subject of the next posting on Rawls.
The account that takes up the rest of Chapter VI of Theory is included in order, as Rawls puts it, to "illustrate the content of the principles of natural duty and obligation". Hence the question of civil disobedience is viewed by Rawls as an exemplary question with regard to such principles. The theory is, as it was in the earlier 1969 article, narrowly defined as it describes actions that are related to a nearly just society which has an established democratic authority. It is not intended to be applicable to cases where resistance to patently unjust social and legal orders is at issue. However, whilst this element of the theory of civil disobedience is of a piece with the earlier 1969 article, Rawls is careful in the account in Theory to distinguish three parts of the theory of civil disobedience. The three parts encompass the definition of civil disobedience, its justification and the role it plays within a constitutional system. The earlier piece, by contrast, was intended primarily to give a justification of civil disobedience although the basic definition that Rawls gives in Theory is not different from the one he gave in the 1969 article. What is distinct, however, is the way that he now defines civil disobedience in such a way that it is made distinct both from conscientious refusal and militancy.
The general definition, that is unchanged from the 1969 article, is that civil disobedience is "a public, nonviolent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in the law or policies of the government". This definition encompasses a number of elements but it is useful, in light of Rawls' purpose of distinguishing the phenomena of civil disobedience from conscientious refusal to see that his definition of civil disobedience describes the latter as a conscientious act. What, as we will see, distinguishes it as a conscientious act, from conscientious refusal, is its political character. The second point worth immediate attention is the reference to the kind of political act that civil disobedience is. It is the kind that seeks to bring about a change in "law or policies", not one that is aimed at destabilising the government as such and certainly not one that challenges the system of justice as a whole. This is how the description of civil disobedience is distinguished from action of a revolutionary (or as Rawls also terms it) "militant" kind.
Having made this initial pass at how civil disobedience will be given a specific status that is intermediate between conscientious refusal and "militancy" Rawls provides two glosses on the definition he has just given of civil disobedience. The first gloss concerns the way that such disobedience involves breaking the law. It is not a requirement that, for the act to be understood as civilly disobedient, that the law that is broken in performing the act, be the same as the law protested against. There are clear reasons for this since the law protested against could be one the breakage of which involved severe penalties or not to be capable of being engaged with by an ordinary citizen. So the civilly disobedient act can be one that is not directly aimed at the law protested but which instead indirectly aims at it by means of expressive law-breaking.
The second gloss, however, is that the civilly disobedient act, to be seen as one, should decidedly be one that does break the law and does not merely present a test case for a constitutional or legal decision. The latter case would be one where, should the law broken be subsequently upheld, the law-breaker would then come to accept the legitimacy of the law which they had broken. In a case of civil disobedience subsequent legal opinion is not to the point concerning the status of the law-breaking. The civilly disobedient actor does not renounce their act simply because subsequent legal opinion tells them the original law is sound in terms of the legal system's rules. So whilst the act need not be directly aimed at the law protested it has to be an act whose status as justified is not disclaimed by the one performing it regardless of normally decisive legal statements.
These two glosses refer to two ways in which civil disobedience is related to the law. The next topic Rawls discusses concerns the relationship of civil disobedience to politics. There are two different ways that Rawls takes civil disobedience to be related to politics. On the one hand, civilly disobedient acts are addressed to the majority that is assumed to at least tacitly support the status quo and this address indicates it is part of the public sphere. On the other hand, civilly disobedient acts are guided and regulated by political principles, not principles of personal morality or religious doctrines. So acts of civil disobedience invoke "the commonly shared conception of justice that underlies the political order" or, to put this point another way, appeal to the principles of justice in order to point up ways in which the laws protested against are taken to be in sharp divergence from them.
At this point Rawls moves on to the point that the civilly disobedient act is a public act. This is another way in which the act is political. It is not a secretive act, intended to evade surveillance, it rather takes place in the light of day and is intended to be known to all. This is, indeed, essential to its character of appealing to the sense of justice of the majority. Attached to this public quality of civil disobedience for Rawls is the fact that the act in question is one that is non-violent. This non-violent quality is part of the civic nature of the civilly disobedient act as violence will impair its ability to act as a mode of address to the majority. It is also non-violent, on Rawls' conception, due to the claim that it is an act that expresses disobedience "within the limits of fidelity to law" although it is right at the edge of such fidelity. Part of what is involved in such fidelity is another reason for the publicity of the act. Given its publicity, the act will incur sanction from legal authority as an evident corollary and this is accepted by the one undertaking the act. This willingness to undergo the penalty, despite the assurance the one undertaking the act has that their action was a just one in reaction to unjust circumstances, is indicative of a claim on the moral consideration of the community.
The references to the non-violent and public quality of civilly disobedient acts allows Rawls to contrast such acts with those of the "militant" or revolutionary as the latter acts under no obligation to either publicity or acceptance of legal consequences. The reason why such action, in contrast to that of civil disobedience, has no necessary relationship to publicity, is that it is part of a settled conviction that the general system of justice, and not merely some element of its application, is deeply wrong. Whilst such action would have to be addressed within a Rawlsian conception of non-ideal theory in relation to basic structures that were not taken to be just, it has no place within the theory of justice but rather defines an action, in relation to a nearly just society, that is itself unjust.
However, Rawls is rather more concerned with describing the definitional difference between civil disobedience and conscientious refusal than with demarcating civil disobedience from militancy. This second part of his task requires him to provide an extended description of conscientious refusal that mirrors his account of civil disobedience (and such an extended account of militancy is not provided for reasons indicated). Conscientious refusal is defined by Rawls as "noncompliance with a more or less direct legal injunction or order". Notably, the inclusion here of reference to a specific legal injunction or order shows that conscientious refusal is distinct from civil disobedience in the sense that it cannot be indirect. It is the specific law protested against that is here broken. An example would be that of a pacifist who refused to heed the call-up. Given that the call-up specifically requires the pacifist to be engaged in the conflict to which they object they can only pursue their conviction in direct violation of it. There is a slight complication since it may be possible to evade the order without being detected and so to act covertly which would be, states Rawls, an act of conscientious evasion but notably this brings out that conscientious acts, considered merely as such, lack the necessary reference to publicity that we disclosed as essential to civil disobedience. Given this difference, there is an immediate sense in which conscientious refusal is not political in the way that civil disobedience is.
Thus far we have seen that conscientious refusal has to be direct and is not necessarily public. However, a further contrast between it and civil disobedience is that conscientious refusal is not an address aimed at the sense of justice of the majority. In not being so it is removed from the public sphere in another way and further indicated as a non-political form of action. The one who undertakes acts of conscientious refusal is like the militant in the sense that they lack confidence in the settled principles of justice of the society they belong to. The principles appealed to in conscientious refusal also need not be political. Religious or moral principles that exceed the limits of the political are frequently appealed to directly in acts of conscientious refusal.
The cases of conscientious refusal pose certain problems for the theory of justice and some of these problems have arisen explicitly in recent cases. So, for example, religious persons who refuse to undertake actions they declare in violation of their conscience and yet are public employees may lose their employment as they are ceasing to act in ways that have civil validity. In such cases, however, the religious convictions are prompting action that violate the requirement of respect for equal liberties (the first principle of justice) and so cannot be taken to have political rationale. It is precisely due to such a claim that there is action involved here which has no basis for appeal to the general sense of justice.
This does not mean that there is nothing politically instructive involved in actions of conscientious refusal as the case of the pacifist illustrates well. Pacifists are generally treated with a margin of respect and given alternative occupations once their adherence to their position is validated. The reason for this treatment, not one accorded in general to those who appeal to principles of conscientious refusal, is due to the degree of affinity that exists between pacifist principles and political ones. There is an inherent reference within pacifist statements to general criteria that are related to, if also distinct from, political ones and the arguments of pacifists contribute to vigilance with regard to justifications for conflict and in this way serve a civil end.
The discussion in this posting has concerned only the general definition of civil disobedience and the contrast between it and the cases of conscientious refusal and revolutionary principles. However nothing in this discussion has as yet given a clear argument justifying civil disobedience or indicating the nature of the kinds of conscientious refusal that might be politically justified other than to specify some kind of connection to the principles of justice. This question of justification will be the subject of the next posting on Rawls.
Tuesday, 21 February 2012
Rawls on Unjust Laws and Majority Rule
It's been a little while now since I posted last on Rawls. The last posting I did concerned the opening sections of Chapter VI of A Theory of Justice, which concerned some principles for individuals. In this posting I am going to continue to look at this chapter, focusing now on the important remarks Rawls makes that bridge the gap between this earlier discussion and the subsequent one that takes up the rest of the chapter and concerns civil disobedience.
Section 53 of Theory concerns the "duty" to comply with an unjust law and here Rawls is concerned to show the basis of this duty against those who would deny that there is any such. Assuming that there is a just basic structure unjust laws are to be taken as binding, Rawls states, "provided that they do not exceed certain limits of injustice". The first question would concern how we are to understand the constitution of these limits though Rawls also points to questions about the priority of distinct principles as another way of framing the key problem here. If there was strict compliance with the principles of justice the problem that is being addressed here would not arise so the problem of how to understand the alleged "duty" of obeying unjust laws is a problem of partial compliance. There are numerous questions of such compliance that Rawls leaves aside (including the important case of the theory of punishment) but he specifically sets out a view on civil disobedience and conscientious refusal but does so still assuming that the case is one in which the basic structure of society is "nearly" just.
In looking at the specific question of unjust laws Rawls points out that unjust laws are not all of a piece as there are two distinct ways injustice can arise. On the one hand, current arrangements can depart from publicly accepted standards that are themselves just (or tend to be so). On the other hand, the publicly accepted standards may be unreasonable and the unjust laws stem from this. In the first case, which is the one that Rawls is considering, there is possible a reference to the sense of justice that underlies the principles publicly accepted. In the second case, depending on the degree and nature of the unreasonable conception in question, there are various possible types of recourse to be made.
Given that the situation being defined by Rawls is of the first type then how does the "duty" he is describing arise? Assuming deviations from justice occur, there cannot be given an immediate right to defy the laws of a mostly just society. How though does it occur that there are "unjust" laws in this situation at all? Rawls' initial response to this question is that imperfect procedures are sure to result in matters of justice. Politically perfect procedures are simply not forthcoming. One of the reasons for this concerns the operation of majority rule. Rawls appears to assume that in a situation tending towards the ideal that majority rule would be a given and then points out that such rule contains fallibility within it, not least due to the presence of partial and self-interested views.
These points appear to refer to general types of facts (what Rawls elsewhere termed the "circumstances" of justice). However there is a prior point at issue which concerns the basis for agreeing to procedures that could produce such outcomes. However, if the problem is one of not accepting that we could be out-voted then surely no acceptable system would prevent this from occurring. Having adopted the principles of justice, there is still no way to prevent conceptions being understood as important by different parties being related to these principles in different ways which is the basis of clashes.
Rawls does indicate an immediate disquiet with what may initially appear a rather sanguine approach to the problem of unjust laws when he refers to "permanent minorities" and the problem of incorporating reference to how to ensure they are not treated unjustly. But this is balanced by Rawls against a general "duty of civility" that is involved in agreeing to comply with unjust laws provided they remain within "certain bounds".
Section 54 concerns the status of majority rule given that this notion was introduced in Section 53 as part of the most acceptable situation of justice. Rawls points out, however, that it has a "subordinate place" as a procedural device as it is important only in relation to serving the ends defined by the two principles of justice. So "majority rule" is not assumed by Rawls, any more than by Kant, as a cardinal principle of justice (which is why Kant is a republican rather than a democrat and this point of connection Rawls has with him suggests that Rawls' theory is also not, in a certain sense, a "democratic" one either if "democracy" is taken to necessarily and as a primary principle require "majority rule"). The majority principle is constrained by reference to the previously defined background principles of justice. The principles of liberty in particular are cardinally decisive against a reference to majority rule.
So if the principle of majority rule is one that is subordinate to the principles of justice and if the principles of justice are required for the basic structure to be taken to be generally just then the reference to majority rule lacks the sacrosant status that the principles of justice themselves have. Also, given that the principle of majority rule is not itself taken to be a primary principle of justice, then action in accord with this principle of majority rule is by no means guaranteed to be itself just.
Rawls next discusses the question of decision making under the conditions that are closest to ideal. Assuming such ideal conditions debate is had with reference to the standards of the principles of justice. So the basis of an agreeable outcome should not be reference to a notion of balancing interests as no such notion involves a clear reference to the principles of justice. Even assuming that this reference to the principles of justice is given, however, it does not follow that the deliberations of the majority would necessarily produce just laws in every case. When we are behind the veil of ignorance the parties debating have impartiality assured by removal of all contingent interests.
Rawls next contrasts the ideal process of deliberation involved in the formulation of laws and principles with the working of an ideal market. The ideal market is assumed to produce efficient outcomes for all even though each agent only pursues their own advantage. However, whilst an ideal market would have a perfect process, even an ideal legislature would be procedurally imperfect. This is why there is no obligation for citizens to assume that even if the ideal legislature existed and worked procedurally correctly that therefore a just outcome had been achieved. The oddity of the contrast is that a perfect outcome would emerge from an ideal market even though the individual actors were acting without reference to the ends of the market taken overall whilst an imperfect outcome emerges from an ideal constitution even assuming that the actors all take impartial ends as theirs. This indicates that Rawls rejects any close analogy between economic and political structures.
There is no specific weight that can be given in the ideal legislative process to individual preferences and no assurance can be forthcoming that any given person, whatever the strength of their view, is really impartial in deliberation. Further there are a variety of ways that the principles of justice can be viewed. In thinking about the difference principle, for example, it might be right to weigh here questions about how to safeguard and foster self-respect amongst the least privileged and this might well produce different outcomes than if any reference to this notion as a primary good is not considered relevant. So there are, even assuming ideal good will is applicable to those engaged in constructing and voting on legislation, grounds for reasonable disagreement concerning how the principles of justice relate to the laws given. This is why the sense that there may be unjust laws emergent from the ideal procedure is given. And assuming this case it follows that the mere presence of unjust laws is not itself a basis for a claim to act in such a way that these laws are broken, even by reference to the standards derived from the principles of justice. This is what Rawls means by referring to the "bounds" of injustice. However, it is noteworthy that nothing in these two sections of Theory has, as yet, defined the nature and extent of these bounds.
Section 53 of Theory concerns the "duty" to comply with an unjust law and here Rawls is concerned to show the basis of this duty against those who would deny that there is any such. Assuming that there is a just basic structure unjust laws are to be taken as binding, Rawls states, "provided that they do not exceed certain limits of injustice". The first question would concern how we are to understand the constitution of these limits though Rawls also points to questions about the priority of distinct principles as another way of framing the key problem here. If there was strict compliance with the principles of justice the problem that is being addressed here would not arise so the problem of how to understand the alleged "duty" of obeying unjust laws is a problem of partial compliance. There are numerous questions of such compliance that Rawls leaves aside (including the important case of the theory of punishment) but he specifically sets out a view on civil disobedience and conscientious refusal but does so still assuming that the case is one in which the basic structure of society is "nearly" just.
In looking at the specific question of unjust laws Rawls points out that unjust laws are not all of a piece as there are two distinct ways injustice can arise. On the one hand, current arrangements can depart from publicly accepted standards that are themselves just (or tend to be so). On the other hand, the publicly accepted standards may be unreasonable and the unjust laws stem from this. In the first case, which is the one that Rawls is considering, there is possible a reference to the sense of justice that underlies the principles publicly accepted. In the second case, depending on the degree and nature of the unreasonable conception in question, there are various possible types of recourse to be made.
Given that the situation being defined by Rawls is of the first type then how does the "duty" he is describing arise? Assuming deviations from justice occur, there cannot be given an immediate right to defy the laws of a mostly just society. How though does it occur that there are "unjust" laws in this situation at all? Rawls' initial response to this question is that imperfect procedures are sure to result in matters of justice. Politically perfect procedures are simply not forthcoming. One of the reasons for this concerns the operation of majority rule. Rawls appears to assume that in a situation tending towards the ideal that majority rule would be a given and then points out that such rule contains fallibility within it, not least due to the presence of partial and self-interested views.
These points appear to refer to general types of facts (what Rawls elsewhere termed the "circumstances" of justice). However there is a prior point at issue which concerns the basis for agreeing to procedures that could produce such outcomes. However, if the problem is one of not accepting that we could be out-voted then surely no acceptable system would prevent this from occurring. Having adopted the principles of justice, there is still no way to prevent conceptions being understood as important by different parties being related to these principles in different ways which is the basis of clashes.
Rawls does indicate an immediate disquiet with what may initially appear a rather sanguine approach to the problem of unjust laws when he refers to "permanent minorities" and the problem of incorporating reference to how to ensure they are not treated unjustly. But this is balanced by Rawls against a general "duty of civility" that is involved in agreeing to comply with unjust laws provided they remain within "certain bounds".
Section 54 concerns the status of majority rule given that this notion was introduced in Section 53 as part of the most acceptable situation of justice. Rawls points out, however, that it has a "subordinate place" as a procedural device as it is important only in relation to serving the ends defined by the two principles of justice. So "majority rule" is not assumed by Rawls, any more than by Kant, as a cardinal principle of justice (which is why Kant is a republican rather than a democrat and this point of connection Rawls has with him suggests that Rawls' theory is also not, in a certain sense, a "democratic" one either if "democracy" is taken to necessarily and as a primary principle require "majority rule"). The majority principle is constrained by reference to the previously defined background principles of justice. The principles of liberty in particular are cardinally decisive against a reference to majority rule.
So if the principle of majority rule is one that is subordinate to the principles of justice and if the principles of justice are required for the basic structure to be taken to be generally just then the reference to majority rule lacks the sacrosant status that the principles of justice themselves have. Also, given that the principle of majority rule is not itself taken to be a primary principle of justice, then action in accord with this principle of majority rule is by no means guaranteed to be itself just.
Rawls next discusses the question of decision making under the conditions that are closest to ideal. Assuming such ideal conditions debate is had with reference to the standards of the principles of justice. So the basis of an agreeable outcome should not be reference to a notion of balancing interests as no such notion involves a clear reference to the principles of justice. Even assuming that this reference to the principles of justice is given, however, it does not follow that the deliberations of the majority would necessarily produce just laws in every case. When we are behind the veil of ignorance the parties debating have impartiality assured by removal of all contingent interests.
Rawls next contrasts the ideal process of deliberation involved in the formulation of laws and principles with the working of an ideal market. The ideal market is assumed to produce efficient outcomes for all even though each agent only pursues their own advantage. However, whilst an ideal market would have a perfect process, even an ideal legislature would be procedurally imperfect. This is why there is no obligation for citizens to assume that even if the ideal legislature existed and worked procedurally correctly that therefore a just outcome had been achieved. The oddity of the contrast is that a perfect outcome would emerge from an ideal market even though the individual actors were acting without reference to the ends of the market taken overall whilst an imperfect outcome emerges from an ideal constitution even assuming that the actors all take impartial ends as theirs. This indicates that Rawls rejects any close analogy between economic and political structures.
There is no specific weight that can be given in the ideal legislative process to individual preferences and no assurance can be forthcoming that any given person, whatever the strength of their view, is really impartial in deliberation. Further there are a variety of ways that the principles of justice can be viewed. In thinking about the difference principle, for example, it might be right to weigh here questions about how to safeguard and foster self-respect amongst the least privileged and this might well produce different outcomes than if any reference to this notion as a primary good is not considered relevant. So there are, even assuming ideal good will is applicable to those engaged in constructing and voting on legislation, grounds for reasonable disagreement concerning how the principles of justice relate to the laws given. This is why the sense that there may be unjust laws emergent from the ideal procedure is given. And assuming this case it follows that the mere presence of unjust laws is not itself a basis for a claim to act in such a way that these laws are broken, even by reference to the standards derived from the principles of justice. This is what Rawls means by referring to the "bounds" of injustice. However, it is noteworthy that nothing in these two sections of Theory has, as yet, defined the nature and extent of these bounds.
Wednesday, 23 March 2011
Rawls and the Justification of Civil Disobedience
In his 1969 paper "The Justification of Civil Disobedience" Rawls describes a fairly narrow conception of what civil disobedience is and how it can be justified. It is, however, an account that connects integrally to the general view of justice developed up to this point. Firstly, the theory only applies to "legally established democratic authority" and secondly it is developed from the social contract positions elaborated in the earlier papers.
The general social contract doctrine is here reaffirmed in terms of a notion of duty as it is taken to be a duty to support and uphold just and efficient institutions. This implies a broader ethical theory at the back of Rawls' view though he is, as always, careful not to draw this out too much. After restating the case for the original position and the veil of ignorance Rawls cuts to the key question of the grounds of obligation for compliance with "unjust" laws. The earlier duty mentioned is restated as the "principle of fairness", the principle that specifies that, given our willingness to accept the benefits of just institutions, so also should we bear the cost of compliance with them.
How does this principle of fairness relate to an obligation to obey unjust laws? Restating the original position a second time Rawls brings out from it the need for the principles of liberty and equality. Subsequently he turns to processes which allow for procedural decisions about "justice" but admits: "we cannot frame a procedure which guarantees that only just and effective legislation is enacted" (180). Democratic constitutions build in a form of majority rule and it is possible the majority is mistaken in its commitment to some course of action or legislation. It is not an unconditional commitment that anyone makes to follow the demands of the constitution so there could be grounds for disobeying the laws framed even given the principle of fairness.
Rawls characterizes civil disobedience as a public, nonviolent and conscientious act contrary to law "usually done with the intent to bring about a change in the policies or laws of the government". Oddly, despite being mentioned first in this description, the public element is least emphasized in Rawls' account though it is crucial in the sense that an act that was not performed with the sense of creating a general impact would hardly count. It must also, though, be an act carried out in the light of day, that is, it must be one that others are directly aware of. The conscientious character is manifested in terms of describing an act motivated by moral principles that define a view of the public good. Now, crucial to this conception of the public good is the sense that it is a view that is not merely idiosyncratic but rather appeals to a sense of justice in the majority of the community. The general point expressed by the act of civil disobedience is that something has gone deeply wrong in the application of the shared principles of justice. This is why the one acting in the way specified declares to the community generally that the ties of community have been severely damaged, a point requiring the committing of the act in question.
The publicity of the act is also manifested in the sense that the one carrying it out expects and invites the constituted authorities to execute the penalties prescribed. So the civilly disobedient act is public in these different senses: i) it is a direct address to others that others are expected to notice; ii) it appeals to principles of justice manifestly held by the community at large and emphasizes this; iii) it invites and expects punishment from the attested authorities as a means of fulfilling both the first two conditions. The last point is described by Rawls as a "bond given to make good one's sincerity" and is required in terms of the stability of systems of justice. Conscientious non-compliance has to meet the force of punishment as without such meeting the general system of justice would not fulfil conditions of stability.
The civilly disobedient act, as characterized by Rawls, is a primarily political act even though ethical and religious doctrines have often been cited in the support of such actions. They are primarily political acts as they rest principally upon appeals to the common principles of justice.
The justification given for civil disobedience on this conception is four-fold. The first element is that there is not a "normal" means to address the wrong complained of. Political parties and constituted authorities are not interested in the question which is why there is an appeal to something that is not "normal" involved. This requirement could be said to be that the injustice complained of is one that the majority and the institutions they support show indifference to. We might term this a complacency requirement. The second condition is that civil disobedience should arise only with regard to fundamentals such as relate to the substantial principles of justice as specified in the principle of equal liberty and equal opportunity. Notably, the second principle of justice is only here invoked in terms of equality of opportunity and not in relation to the difference principle. The reason given is that violations of the difference principle are a much more controversial matter and they are also taken to be less fundamental. So the second requirement appears to circumscribe civil disobedience in such a way that it is not legitimately understood to be something that can be undertaken when we have "only" social grievances.
The third element is a generality requirement: if we invoke the right to civil disobedience in a situation we are concerned with then we have to grant the right to others in similar situations. This generality requirement is again tied to questions of stability as Rawls takes it to be the case that granting civil disobedience to have this general condition shows the security of the basic principles of justice for all. The final element is distinct from these three as it concerns not the conditions under which the appeal to civil disobedience can be granted as having sense but rather the conditions under which it can be assumed to be efficacious. That is, granted you have a case in relation to the criteria listed to commit acts of a civilly disobedient nature, should you do so? This question is partly tactical, in the sense of whether acting in this way will best help to attain your ends. But it is also partly the case that the act, even if justified in relation to the standards given, may be one that produces counter-productive results and that possibility also has to weigh on one's judgment. So the final criteria concerns conditions of judgment.
Rawls closes the article by considering some objections to the view given. The first is that it relies too much on the existence of a sense of justice in others. Certainly, as was indicated in the fourth criteria, if such a sense of justice has generally decayed then it is hardly rational to engage in it even if it is justified. It is, though, also true that in a constitutional democracy some form of attachment to the principles of justice is a given for its stability and so appeal to this always has some place in the system. Separately, it could be thought that the doctrine of civil disobedience grants too much ground to subjective conceptions of rightness and fairness as anyone here has the right to judge what laws breach the bonds of social cooperation. However, Rawls' reply to this is a good one since he points out that it is factually true that it is, ultimately, left to each one of us to consider such a matter. No theory of a constitutional democracy can fail to recognise this.
Related articles
The general social contract doctrine is here reaffirmed in terms of a notion of duty as it is taken to be a duty to support and uphold just and efficient institutions. This implies a broader ethical theory at the back of Rawls' view though he is, as always, careful not to draw this out too much. After restating the case for the original position and the veil of ignorance Rawls cuts to the key question of the grounds of obligation for compliance with "unjust" laws. The earlier duty mentioned is restated as the "principle of fairness", the principle that specifies that, given our willingness to accept the benefits of just institutions, so also should we bear the cost of compliance with them.
How does this principle of fairness relate to an obligation to obey unjust laws? Restating the original position a second time Rawls brings out from it the need for the principles of liberty and equality. Subsequently he turns to processes which allow for procedural decisions about "justice" but admits: "we cannot frame a procedure which guarantees that only just and effective legislation is enacted" (180). Democratic constitutions build in a form of majority rule and it is possible the majority is mistaken in its commitment to some course of action or legislation. It is not an unconditional commitment that anyone makes to follow the demands of the constitution so there could be grounds for disobeying the laws framed even given the principle of fairness.
Rawls characterizes civil disobedience as a public, nonviolent and conscientious act contrary to law "usually done with the intent to bring about a change in the policies or laws of the government". Oddly, despite being mentioned first in this description, the public element is least emphasized in Rawls' account though it is crucial in the sense that an act that was not performed with the sense of creating a general impact would hardly count. It must also, though, be an act carried out in the light of day, that is, it must be one that others are directly aware of. The conscientious character is manifested in terms of describing an act motivated by moral principles that define a view of the public good. Now, crucial to this conception of the public good is the sense that it is a view that is not merely idiosyncratic but rather appeals to a sense of justice in the majority of the community. The general point expressed by the act of civil disobedience is that something has gone deeply wrong in the application of the shared principles of justice. This is why the one acting in the way specified declares to the community generally that the ties of community have been severely damaged, a point requiring the committing of the act in question.
The publicity of the act is also manifested in the sense that the one carrying it out expects and invites the constituted authorities to execute the penalties prescribed. So the civilly disobedient act is public in these different senses: i) it is a direct address to others that others are expected to notice; ii) it appeals to principles of justice manifestly held by the community at large and emphasizes this; iii) it invites and expects punishment from the attested authorities as a means of fulfilling both the first two conditions. The last point is described by Rawls as a "bond given to make good one's sincerity" and is required in terms of the stability of systems of justice. Conscientious non-compliance has to meet the force of punishment as without such meeting the general system of justice would not fulfil conditions of stability.
The civilly disobedient act, as characterized by Rawls, is a primarily political act even though ethical and religious doctrines have often been cited in the support of such actions. They are primarily political acts as they rest principally upon appeals to the common principles of justice.
The justification given for civil disobedience on this conception is four-fold. The first element is that there is not a "normal" means to address the wrong complained of. Political parties and constituted authorities are not interested in the question which is why there is an appeal to something that is not "normal" involved. This requirement could be said to be that the injustice complained of is one that the majority and the institutions they support show indifference to. We might term this a complacency requirement. The second condition is that civil disobedience should arise only with regard to fundamentals such as relate to the substantial principles of justice as specified in the principle of equal liberty and equal opportunity. Notably, the second principle of justice is only here invoked in terms of equality of opportunity and not in relation to the difference principle. The reason given is that violations of the difference principle are a much more controversial matter and they are also taken to be less fundamental. So the second requirement appears to circumscribe civil disobedience in such a way that it is not legitimately understood to be something that can be undertaken when we have "only" social grievances.
The third element is a generality requirement: if we invoke the right to civil disobedience in a situation we are concerned with then we have to grant the right to others in similar situations. This generality requirement is again tied to questions of stability as Rawls takes it to be the case that granting civil disobedience to have this general condition shows the security of the basic principles of justice for all. The final element is distinct from these three as it concerns not the conditions under which the appeal to civil disobedience can be granted as having sense but rather the conditions under which it can be assumed to be efficacious. That is, granted you have a case in relation to the criteria listed to commit acts of a civilly disobedient nature, should you do so? This question is partly tactical, in the sense of whether acting in this way will best help to attain your ends. But it is also partly the case that the act, even if justified in relation to the standards given, may be one that produces counter-productive results and that possibility also has to weigh on one's judgment. So the final criteria concerns conditions of judgment.
Rawls closes the article by considering some objections to the view given. The first is that it relies too much on the existence of a sense of justice in others. Certainly, as was indicated in the fourth criteria, if such a sense of justice has generally decayed then it is hardly rational to engage in it even if it is justified. It is, though, also true that in a constitutional democracy some form of attachment to the principles of justice is a given for its stability and so appeal to this always has some place in the system. Separately, it could be thought that the doctrine of civil disobedience grants too much ground to subjective conceptions of rightness and fairness as anyone here has the right to judge what laws breach the bonds of social cooperation. However, Rawls' reply to this is a good one since he points out that it is factually true that it is, ultimately, left to each one of us to consider such a matter. No theory of a constitutional democracy can fail to recognise this.
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