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.

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